Business Law Articles
By Ynze Kliphuis. LL.M.
Russell Advocaten, B.V.
The Facebook and Cambridge Analytica data scandal brought privacy into focus once again. At the end of May, the new European privacy law will enter into force. So what do you certainly need to do?
Privacy is hot. Mark Zuckerberg had to eat humble pie because of Cambridge Analytica that collected personal data of 87 million people via Facebook. The Haga Hospital in The Hague violated privacy by taking insufficient measures to prevent unauthorised employees from browsing in the medical data of a Dutch celebrity. The General Data Protection Regulation will be effective from 25 May 2018, and it will include heavy sanctions for violations. Russell Advocaten organised seminars on the GDPR on 16 and 17 April 2018, thereby updating (potential) clients on the consequences of the GDPR. So what are the implications of the GDPR for you?
General Data Protection Regulation
The GDPR is the European privacy law which is directly applicable in all EU Member States and abroad. The Chinese web store AliBaba has to comply with the GDPR too, as it offers goods in the EU.
The aim of the GDPR is to provide individuals with more control over their personal data. Personal data are all data linking either directly or indirectly to a natural person, such as name, address, DNA, number plate, personal preferences, etc. Company data are not included but the mobile phone number of a contact is.
Each day, individuals share personal data with organisations. This is done either knowingly (for instance, if you order something online or become a member of an association) or unknowingly (for instance by surveillance cameras). The GDPR will apply to that, unless a natural person processes personal data for non-business purposes only. Thus your private birthday calendar will not fall under the GDPR.
Mandatory privacy statement for companies and authorities
The GDPR requires organisations to make transparent in advance which personal data they need, for what purpose and with whom they will be shared, and for how long they will be stored. This can be done by means of a privacy statement on the website of the organisation.
In such a statement, persons have to be informed of the modalities of the processing of personal data – storage, changes, sharing, etc. – so that they will be informed of what happens with their data and, if necessary, can give informed consent to the processing. The processing of personal data is only permitted, if an individual has given explicit consent to do so or it will be necessary for any of the following:
- implementation of a (future) agreement to which the individual is a party
- compliance with a legal requirement
- vital interests of the individual or another natural person
- performance of a task of general interest or exercise of public authority and/or
- a reasonable interest of the controller
In addition, specific mention has to be made whether data will be shared with third parties, with whom a processing agreement will have to be concluded. This requirement does not just apply to, for instance, providing addresses to PostNL, so that PostNL can deliver the order at the correct address, but also if you contract a party for payrolling, thus sharing personal data of your employees. In a processing agreement will be specified that these data will not be used for other purposes.
Rights of individuals
Further, the privacy statement has to contain the rights of individuals and the modalities of exercising these rights. This regards the rights
- of access to data
- of rectification of data
- of deletion of data (“right to be forgotten”)
- of restriction of data processing
- of transfer of data
- of objection against processing and
- of not being subject to automated decisions. This may include that you have to state which systems you use.
The GDPR is a considerable administrative burden for companies and organisations. They will have to analyse which personal data they (need to) have and whether the legal basis is sufficient. If there is no legal basis or requirement, the organisation will have to request the individual’s consent or delete the data.
There won’t be just more administration, but companies will also have to answer for how they use personal data. You can do so by means of a privacy statement in relation to persons who have contact with the organisation, for instance customers and suppliers. As penalties for violations of the GDPR can be extremely high, such a statement needs to be legally sound.
Would you like us to check or draft a privacy statement for you? Or do you have any other questions regarding the GDPR and what you have to do to become “GDPR-proof”? Please contact us.