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General Data Protection Regulation (GDPR)

Background information on the General Data Protection Regulation legislation.

This content is not intended to constitute legal advice. Specific legal advice should be sought before taking or refraining from taking any action in relation to the matters outlined. 

Please note: detailed guidance on how to implement the GDPR is not yet available from the ICO. It is expected to be available in the autumn of 2017. ICAEW will then publish its own guidance for members. In the meantime ICAEW is advising members to make themselves aware of the main changes introduced by the GDPR, assess what data they hold and to appoint a senior employee to oversee any changes they may have to make to ensure compliance with the GDPR. Regular visits to the ICO website for the latest information is also recommended.

Read our Essential guide to GDPR, to help you understand the new regulation and what you need to do to prepare.

Background

The EU has introduced the GDPR to update and harmonise data protection practices across the EU. It will apply to all EEA countries and any individual or organisations trading with them. As it comes into force on 25 May 2018 (before the UK leaves the EU), UK individuals and organisations must ensure compliance with the new regime by then.

The Information Commissioner’s Office (ICO) and the government have confirmed that they expect UK individuals and organisations to adhere to the GDPR, as post-Brexit the UK’s data protection legislation (currently the Data Protection Act 1998 (DPA)) must meet the GDPR standard.

Why the change?

The GDPR is partly an update to meet the new challenges of the 21st century. It has done this by increasing protection for consumers and placing the onus on individuals and organisations to handle personal data correctly and securely.

What is the same?

  • The definitions of 'processor' and 'controller'.
  • The ICO as the UK’s regulator.
  • The eight principles still apply.
  • International data transfers (excluding self-assessment).

What has changed?

  • Data processors – must now maintain records and are directly liable if responsible for a breach.
  • Data controllers – new obligations including a duty to ensure that your contracts with processors comply with the GDPR.
  • Accountability principle – you must show how you comply e.g document what you have done and why.
  • Privacy impact assessments – must be carried out to assess the risk to individuals' rights, eg, when using new technology.
  • Higher standards for consent.
  • Enhanced rights for individuals, including the right to be informed, object and be forgotten as well as rights regarding access, rectification, erasure, restrictions on processing, data portability and automated decision-making.
  • Data protection officer – not mandatory for all organisations but an appropriately senior individual must be responsible for GDPR compliance.
  • The duty to report a breach quickly will apply to all and failure to report will result in a fine.
  • Increase in maximum fines (4% of global annual turnover).

What should ICAEW members do now?

Doing nothing is not an option, because if the UK were subsequently to repeal the GDPR, very many organisations would still have to comply with the GDPR. GDPR applies to processing of personal data where the controller or processor is in the EU, and/or offers goods and services (even if free) to, or monitoring activities of, EU data subjects.

As a start, you must evaluate whether your existing practices and procedures meet GDPR standards and then plan how you will address any shortcomings. This must be done in relation to any personal data you process or hold, whether on behalf of clients or your business. As a minimum, contract clauses on the sharing of data with others should be reviewed to check for compliance with the GDPR.

Your clients will also have to comply so it might be worthwhile checking that they are aware of these changes; supporting them in this may be an 'added value' opportunity for you.

What next?

The ICO has promised detailed guidance. In the meantime, our advice is to check whether the GDPR applies to you and to regularly check ICO's Data Protection Reform for updates.

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Last updated 3 May 2017.