Introduction

In today’s digital age, the volume of personal data generated and processed has surged, making data protection more critical than ever. Personal data breaches can lead to severe consequences, including identity theft, financial loss, and reputational damage. The General Data Protection Regulation (GDPR) provides a comprehensive set of strict rules and regulations to safeguard the privacy and personal data of European Union (EU) citizens. 

This article explores what the GDPR is, its requirements, the consequences of non-compliance, and the steps involved in obtaining and maintaining certification.

What is GDPR

The GDPR is a comprehensive data protection law enacted by the European Union (EU) that came into effect on May 25, 2018. It is designed to protect privacy laws across Europe, protect EU citizens’ data privacy, and reshape the way organizations across the region approach data privacy.

According to the official GDPR documentation, personal data is defined as any information related to an identified/identifiable natural person (‘data subject’). This information includes but is not limited to a person’s name, identification number, location data, and factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of the person. 

The GDPR applies to any organization worldwide that deals with the data of EU residents. Its introduction marks a significant shift in the data protection landscape by imposing strict data protection requirements on organizations and setting severe penalties for non-compliance. By setting these standards, the GDPR aims to give individuals more control over their data. 

GDPR Principles

GDPR relies on seven fundamental principles that guide the collection, use, and management of personal data, ensuring that it is handled legally and ethically.

1. Lawfulness, Fairness, and Transparency

GDPR mandates that all data processing must be lawful, fair, and transparent to the data subjects. This means organizations must process data only for legitimate purposes clearly stated to individuals at the time of collection, and handle their data in a way that is justifiable and expected.

2. Purpose Limitation

Data collected for specified and legitimate purposes cannot be used in a way incompatible with those purposes. GDPR requires that organizations clearly state the specific purposes for which they are collecting personal data and strictly follow those conditions.

In case an organization needs to use the data for a new purpose, it must specifically ask for user consent again to remain compliant with GDPR. 

3. Data Minimization

Organizations must ensure that only the minimum amount of personal data required for the intended purpose is collected and processed. This principle aims to limit the scope of data collection to what is strictly necessary. 

4. Accuracy

It is the organization’s responsibility to ensure the accuracy of collected data. Organizations should take every reasonable step to correct, update, or erase incorrect data. This principle emphasizes the importance of keeping personal data accurate and up to date. 

5. Storage Limitation

Personal data should be kept in a form that permits the identification of data subjects for no longer than necessary for the intended purpose of collection. GDPR encourages organizations to establish clear data retention policies to ensure compliance with this principle. 

6. Integrity and Confidentiality

Data processing must be done in a way that ensures the security, integrity, and confidentiality of the data. This involves protecting personal data from unauthorized access, loss, or destruction using appropriate technical and physical measures. 

7. Accountability

The accountability principle states that the organization collecting data is responsible for, and must be able to demonstrate, compliance with all other data protection principles. Organizations must have adequate measures and records in place to ensure and prove compliance with GDPR. 

These seven principles form the backbone of GDPR compliance, requiring organizations to implement them throughout the lifecycle of personal data processing. By following these principles, organizations not only comply with legal requirements but also demonstrate respect for individual privacy rights, enhancing trust and credibility among their stakeholders.

Data Subject Rights

The GDPR has an extensive document on data subject rights, which refers to the rights that data subjects have over their data. These rights ensure that data subjects have significant control and transparency over their information.

1. Right to Access

Data subjects have the right to confirm whether their data is being processed, and if so, to access that data. They can obtain information about processing purposes, data categories, recipients, and storage duration. data subjects can also learn about any third-party data source (if not collected directly) and the details of any automated decision-making, including profiling. For data transfers to third countries, data subjects can request information about safeguards.

Organizations must provide a free copy of processed data, typically in electronic form. However, they may charge extra for additional copies to cover administrative costs. 

2. Right to Rectification

Data subjects have the right to request corrections to their data if it is inaccurate or incomplete by submitting supplementary data. This right ensures that the data held by organizations is up-to-date and accurate. 

3. Right to Erasure (Right to be Forgotten)

Data subjects have the right to request the deletion of their data without undue delay. Organizations must comply if the data is no longer necessary for its original purpose, consent is withdrawn, the data subject objects to processing, the data was unlawfully processed, erasure is required by law, or the data is collected for information society services.

When data has been made public, organizations must take reasonable steps to inform other organizations processing the data about the erasure request.

However, exceptions apply when processing is necessary for exercising freedom of expression and information, complying with legal obligations, performing tasks in the public interest, reasons of public health, archiving purposes in the public interest, scientific or historical research, statistical purposes, or for establishing, exercising, or defending legal claims. 

4. Right to Restrict Processing

Data subjects can request that the processing of their data be restricted. This right applies when the accuracy of the data is contested, the processing is unlawful, or the data is no longer needed but the data subject opposes its deletion. When processing is restricted, the organization can only store the data, unless the data subject consents to other uses, or it is needed for legal claims, protecting others’ rights, or for important public interests.

The organization must inform the data subject before lifting any processing restriction. 

5. Right to Data Portability

This right allows data subjects to receive their data in a structured, commonly used, and machine-readable format. This right applies when processing is based on consent or contract and is carried out by automated means. Data subjects can transmit this data to other organizations, and where technically feasible, they can request direct transmission between organizations. This enhances the user’s control over their data and facilitates switching between service providers. 

6. Right to Object

Data subjects have the right to object to the processing of their data. The organization must immediately stop processing unless they can demonstrate compelling reasons that override the data subject’s interest, rights, and freedom, or if processing is necessary for legal claims.

For direct marketing, data subjects have an absolute right to object at any time and the data must no longer be processed for these purposes. Organizations must inform data subjects of this right at the first communication.

In the context of information society services, objection can be exercised through automated means. For scientific, historical research, or statistical purposes, data subjects can object based on their particular situations. 

7. Rights Related to Automated Decision Making and Profiling

GDPR provides rights for data subjects to not be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning them or similarly significantly affects them. This right ensures human oversight in important decision-making processes.

However, exceptions may apply when automated decisions are necessary for contract performance, authorized by law with appropriate safeguards, or based on explicit consent. 

Consent Requirements

Gaining user consent for data processing is one of the fundamental elements of GDPR. It must be given freely, be specific, informed, and unambiguous. According to the official GDPR documentation, user consent must adhere to the following requirements:

1. Freely Given

Consent must be voluntarily offered by the data subject without any pressure or influence. This means consent should not be a precondition of service unless necessary to deliver the service.

2. Specific

Consent must be given for specific purposes. Blanket consent without stating the scope of its application is not acceptable. Each distinct processing operation should have its consent request, ensuring that the data subject is fully aware of how their data will be used.

3. Informed

For consent to be informed, the data subject must be aware at least of the identity of the organization and the purposes of the processing for which the personal data are intended. Additionally, data subjects must be informed of their right to withdraw consent at any time.

4. Unambiguous

There must be a clear affirmative action by the data subject to signify consent. This could be through a written statement, including by electronic means, or an oral statement. This implies that silence, pre-ticked boxes, or inactivity are not acceptable.

5. Demonstrable

Organizations must be able to demonstrate that the data subject has consented to the processing of their data. This means keeping records of when and how consent was obtained, as well as the information provided to the data subject at the time.

6. Withdrawable

Data subjects have the right to withdraw their consent at any time, and it must be as easy to withdraw as it is to give consent. This right must be communicated to the data subjects at the time of giving consent.

Data Breaches and Notification Protocols

The GDPR has set guidelines for handling data breaches. These regulations are designed to ensure quick and effective responses to protect data subjects and mitigate potential harm. Here are the key aspects of GDPR’s data breach notification requirements;

Data breaches are a critical concern under the General Data Protection Regulation (GDPR), which sets forth strict guidelines and protocols for handling personal data breaches. These regulations are designed to ensure quick and effective responses to protect data subjects and mitigate potential harms. Here’s a breakdown of the key aspects of GDPR’s data breach notification requirements:

1. Definition of a Data Breach

A data breach under GDPR is defined as a breach of security leading to the accidental or unlawful destruction, loss, alteration, or unauthorized disclosure of, or access to, personal data.

2. Notification Requirements

If there is a data breach, organizations must notify the appropriate data protection authority (DPA) within 72 hours of becoming aware of it, unless the breach is unlikely to result in a risk to the rights and freedoms of data subjects. If the notification to the DPA is not made within 72 hours, it must be accompanied by reasons for the delay.

3. Communicating to Data Subjects

When the data breach is likely to result in a high risk to the rights and freedoms of data subjects, the organization must also communicate the breach directly to the affected data subjects without undue delay.

4. Content of the Notification

Notifications must include the nature of the personal data breach, including, where possible, the categories and approximate number of data subjects and personal data records concerned. They must also include the name and contact details of the data protection officer or another contact point, a description of the likely consequences of the personal data breach, and a description of the measures taken or proposed to be taken by the controller to address the personal data breach.

5. Exceptions to the Notification Requirement

There are exceptions to the requirement to notify data subjects directly, such as if the data was appropriately encrypted or anonymized so that it is unintelligible to any person who accesses it, or if the company has taken subsequent measures to ensure that there is no longer a high risk to the data subjects. Alternatively, notification can be avoided if it would involve disproportionate effort (in which case, there must be a public communication or similar measure).

6. Documentation of Data Breaches

Organizations are required to document any personal data breaches, regardless of whether they are required to notify. This documentation must contain the facts relating to the data breach, its effects, and the remedial actions taken. This is important to demonstrate compliance with GDPR’s requirements.

Data Protection by Design and by Default

The GDPR introduces the principles of "data protection by design" and "data protection by default" as key components of compliance. These principles ensure that data protection measures are integral to the development processes of products and services from the inception.

1. Data Protection by Design

Data protection by design requires that data protection measures are integrated into the development and operation of IT systems, networked infrastructure, and business practices. This means considering privacy and data protection issues at the design phase of any system, service, or process and throughout the lifecycle. This approach helps in embedding data protection features into the core functionality of new products and technologies.

2. Data Protection by Default

Data protection by default means that the strictest privacy settings automatically apply once a customer acquires a new product or service, without requiring any manual input from the user. In practice, this means that only the data that is necessary for the specific purpose of the product or service is processed, stored, and accessible. For example, an app should not require access to additional personal data unless it is essential for the specific functioning of the app.

Role and Responsibilities of Data Protection Officers (DPOs)

The GDPR has set specific conditions under which organizations are required to appoint a Data Protection Officer (DPO). This role is crucial in ensuring compliance with GDPR requirements.

1. When is a DPO Required

A DPO must be appointed in three key situations:

• The processing of data is being carried out by public authorities or bodies (excluding courts acting in their judicial capacity.)

• The core activities of the controller or processor consist of processing operations that require regular and systematic monitoring of data subjects on a large scale.

• The core activities consist of large-scale processing of special categories of data or personal data relating to criminal convictions and offenses.

2. Responsibilities of a DPO

The DPO’s responsibilities include, but are not limited to:

• Informing and advising the organization and its employees about their obligations to comply with GDPR and other data protection laws.

• Monitoring compliance with GDPR, including managing internal data protection activities, advising on data protection impact assessments; training staff, and conducting internal audits.

• Acting as a point of contact for the supervisory authority on issues relating to processing, including prior consultation, and consult, where appropriate, concerning any other matter.

• Being available to data subjects to discuss all issues related to the processing of their data and their rights under GDPR.

3. Position and Independence

A DPO must be provided with appropriate resources to carry out their tasks and maintain their expert knowledge. Moreover, they must not receive any instructions regarding the exercise of their tasks from the employer. The DPO must report directly to the highest level of management and must not be dismissed or penalized for performing their tasks.

4. Expertise and Skills

A DPO should be appointed based on professional qualities and, in particular, expert knowledge of data protection law and practices. 

5. Benefits of Having a DPO

Having a DPO helps organizations ensure a systematic approach to data protection, thereby enhancing compliance with GDPR. This role is integral not only in minimizing the risk of fines and penalties due to non-compliance but also in building trust with consumers and reinforcing the organization’s reputation for protecting personal data.

Consequences of Non-Compliance

The GDPR has specified significant penalties in its guidelines. Understanding the consequences of failing to adhere to GDPR is crucial for all organizations handling personal data within or directed toward the EU.

1. Administrative Fines

GDPR establishes severe fines based on the nature of the non-compliance, which can be as high as 4% of the annual global turnover or €20 million, whichever is greater. These fines are designed to be "effective, proportionate, and dissuasive."

2. Two Tiers of Fines

The regulation specifies two levels of fines. For less severe violations, such as improper record-keeping, lack of cooperation with the supervisory authority, or failure to notify a breach, the fine can go up to 2% of the annual worldwide turnover or €10 million.

For more severe violations, including violations of the basic principles of processing, conditions for consent, data subjects' rights, and cross-border data transfers, the fines can reach up to 4% of the annual worldwide turnover or €20 million.

3. Criteria for Determining Fines

The amount of the fine is determined based on factors including the nature, gravity, and duration of the infringement; whether the infringement was intentional or resulting from negligence; any actions taken by the organization to mitigate damage to data subjects; the degree of cooperation with the supervisory authority; previous infringements; the types of personal data affected; and how the supervisory authority became aware of the infringement.

4. Other Remedies and Actions

Beyond financial penalties, GDPR also allows supervisory authorities several other corrective powers. These include issuing warnings or reprimands, ordering compliance with data subject requests, restricting or banning data processing temporarily or permanently, and mandating the rectification or erasure of data. These actions can be tailored to the specific circumstances of each case, allowing authorities to respond effectively to various compliance failures.

5. Legal and Reputational Damage

Non-compliance can also lead to significant legal and reputational damage. It can affect an organization's relationship with customers, potentially leading to loss of business and customer trust. 

Achieving GDPR Compliance

Achieving compliance with the GDPR requires careful planning and execution. Organizations must follow a set of key steps to ensure they meet the regulation's requirements. This section outlines a general checklist for GDPR compliance, serving as a guide for organizations to achieve compliance smoothly.

1. Lawful Basis and Transparency

Organizations must conduct thorough information audits to map out what personal information they process, its purposes, and who accesses it. It is essential to establish and document a lawful basis for each data processing activity. 

This foundation supports the clarity in privacy notices that should detail data processing activities and their legal justifications, making this information easily accessible to users.

2. Data Security

From the initiation of data collection to the processing phase, organizations are required to integrate robust data protection measures. This includes encrypting, pseudonymizing, or anonymizing personal data as appropriate. 

A principle of data protection by design and default should be embedded in all business practices, ensuring that only necessary data is processed. Additionally, organizations should regularly conduct Data Protection Impact Assessments for high-risk processing activities to identify and mitigate risks effectively.

3. Accountability and Governance

GDPR recommends setting up someone to ensure GDPR compliance across the organization. Formal agreements must be established with third-party processors to ensure their compliance with GDPR. If the organization operates outside the EU but handles EU data, appointing a representative within the EU is also necessary.

Additionally, according to the requirements discussed earlier in this article, appoint a DPO if necessary.

4. Privacy Rights

Organizations must set up accessible and efficient processes allowing data subjects to access, correct, delete, or transfer their data. These processes must be easy for customers to execute, ensuring they can exercise their rights under GDPR.

5. Incident Response

A critical component of GDPR compliance is having a robust process in place to notify both the authorities and the affected data subjects in the event of a data breach. This process must be swift, aiming to meet the GDPR requirement of notifications within 72 hours of becoming aware of the breach.

By following this checklist, organizations can significantly reduce their risk of non-compliance and ensure they respect and protect the data privacy rights of individuals within the EU. Regular updates and reviews of these practices are essential to adapt to any changes in the legal landscape or operational shifts within the organization.

Get GDPR Compliant with Walturn

At Walturn, we integrate GDPR compliance into our product engineering services to ensure your digital solutions meet essential data protection standards. By partnering with us, you can confidently address GDPR requirements while focusing on your core business objectives. Reach out to us to enhance your products with built-in compliance and data security.

Conclusion

In conclusion, the GDPR sets a high bar for data protection, impacting organizations globally. Compliance requires an ongoing commitment to adapting data practices and regulatory updates. Adhering to GDPR not only minimizes legal risks but also boosts organizational reputation, establishing trust in the digital economy.