ICO

INFORMATION COMMISSIONER'S OFFICE (UK)

Preparing for the General Data Protection Regulation (GDPR)

12 steps to take now

1. Awareness

You should make sure that decision makers and key people in your organisation are aware that the law is changing to the GDPR. They need to appreciate the impact this is likely to have.

2.Information you hold

You should document what personal data you hold, where it came from and who you may need to organise an information audit.

3.Communicating privacy information

You should review your current privacy notices and put a plan in place for making any necessary changes in time for GDPR implementation.

4. Individuals’ rights

You should check your procedures to ensure they cover all the rights individuals have, including how you would delete personal data or provide data electronically and in a commonly used format

5.Subject access requests

You should update your procedures and plan how you will handle requests within the new timescales and provide any additional information.

6.Lawful basis for processing personal data

You should identify the lawful basis for your processing activity in the GDPR, document it and update your privacy notice to explain it.

7.Consent

You should review how you seek, record and manage consent and whether you need to make any changes. Refresh existing consents now if they don’t meet the GDPR standard.

8.Children

You should start thinking now about whether you need to put systems in place to verify individuals’ ages and to obtain parental or guardian consent for any data processing activity.

9.Data breaches

You should make sure you have the right procedures in place to detect, report and investigate a personal data breach.

10.Data Protection by Design and Data Protection Impact Assessments

You should familiarise yourself now with the ICO’s code of practice on Privacy Impact Assessments as well as the latest guidance from the Article 29 Working Party, and work out how and when to implement them in your organisation.

11.Data Protection Officers

You should designate someone to take responsibility for data protection compliance and assess where this role will sit within your organisation’s structure and governance arrangements. You should consider whether you are required to formally designate a Data Protection Officer.

12.International

If your organisation operates in more than one EU member state (ie you carry out cross-border processing), you should determine your lead data protection supervisory authority. Article 29 Working Party guidelines will help you do this.

Introduction

This checklist highlights 12 steps you can take now to

prepare for the General Data Protection Regulation

(GDPR) which will apply from 25 May 2018.

Many of the GDPR’s main concepts and principles are much the same as those in the current Data Protection Act (DPA), so if you are complying properly with the current law then most of your approach to compliance will remain valid under the GDPR and can be the starting point to build from. However, there are new elements and significant enhancements, so you will have to do some things for the first time and some things

differently.

It is important to use this checklist and other Information Commissioner’s Office (ICO) resources to work out the main differences between the current law and the GDPR. The ICO is producing new guidance and other tools to assist you, as well as contributing to guidance that the Article 29 Working Party is producing at the European level. These are all available via the ICO’s Overview of the General Data Protection Regulation. The ICO is also working closely with trade associations and bodies representing the various sectors – you should also work closely with these bodies to share knowledge about implementation in your sector.

It is essential to plan your approach to GDPR compliance now and to gain ‘buy in’ from key people in your organisation. You may need, for example, to put new procedures in and individuals’ rights provisions. In a large or complex business this could have significant budgetary, IT, personnel, governance and communications implications.

The GDPR places greater emphasis on the documentation that data controllers must keep to demonstrate their accountability. Compliance with all the areas listed in this document will require organisations to review their approach to governance and how they manage data protection as a corporate issue. One aspect of this might be to review the

contracts and other arrangements you have in place when sharing data with other organisations.

Some parts of the GDPR will have more of an impact on some organisations than on others (for example, the provisions relating to profiling or children’s data), so it would be useful to map out which parts of the GDPR will have the greatest impact on your business model and give those areas due prominence in your planning process.

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Step 9: Data breaches

You should make sure you have the right procedures in place to detect, report and investigate a personal data breach. Some organisations are already required to notify the ICO (and possibly some other bodies) when they suffer a personal data breach. The GDPR introduces a duty on all organisations to report certain types of data breach to the ICO, and in some cases, to individuals. You only have to notify the ICO of a breach where it is likely to result in a risk to the rights and freedoms of individuals – if, for example, it could result in discrimination, damage to reputation, financial loss, loss of confidentiality

or any other significant economic or social disadvantage.

Where a breach is likely to result in a high risk to the rights and freedoms of individuals, you will also have to notify those concerned directly in most cases. You should put procedures in place to effectively detect, report and investigate a personal data breach. You may wish to assess the types of personal data you hold and document where you would be required to notify the ICO or affected individuals if a breach occurred. Larger

organisations will need to develop policies and procedures for managing data breaches. Failure to report a breach when required to do so could result in a fine, as well as a fine for the breach itself.

Step 10: Data Protection by Design and Data Protection Impact Assessments

It has always been good practice to adopt a privacy by design approach and to carry out a Privacy Impact Assessment (PIA) as part of this. However, the GDPR makes privacy by design an express legal requirement, under the term ‘data protection by design and by default’. It also makes PIAs – referred to as ‘Data Protection Impact Assessments’ or DPIAs – mandatory in certain circumstances.

A DPIA is required in situations where data processing is likely to result in high risk to individuals, for example:

 where a new technology is being deployed;

 where a profiling operation is likely to significantly affect individuals; or

 where there is processing on a large scale of the special categories of data.

If a DPIA indicates that the data processing is high risk, and you cannot sufficiently address those risks, you will be required to consult the ICO to seek its opinion as to whether the processing operation complies with the GDPR.

You should therefore start to assess the situations where it will be necessary to conduct a DPIA. Who will do it? Who else needs to be involved? Will the process be run centrally or locally?

You should also familiarise yourself now with the guidance the ICO has produced on PIAs as well as guidance from the Article 29 Working Party, and work out how to implement them in your organisation. This guidance shows how PIAs can link to other organisational processes such as risk management and project management.

Step 11: Data Protection Officers

You should designate someone to take responsibility for data protection compliance and assess where this role will sit within your organisation’s structure and governance arrangements.

You should consider whether you are required to formally designate a Data Protection Officer (DPO).

You must designate a DPO if you are:

 a public authority (except for courts acting in their judicial capacity);

 an organisation that carries out the regular and systematic monitoring of individuals on a large scale; or

 an organisation that carries out the large scale processing of special categories of data, such as health records, or information about criminal convictions. The Article 29 Working Party has produced guidance for organisations on the designation, position and tasks of

DPOs.

It is most important that someone in your organisation, or an external data protection advisor, takes proper responsibility for your data protection compliance and has the knowledge, support and authority to carry out their role effectively.

Step 12: International

If your organisation operates in more than one EU member state, you should determine your lead data protection supervisory authority and document this. The lead authority is the supervisory authority in the state where your main establishment is. Your main establishment is the location where your central administration in the EU is or else the location where decisions about the purposes and means of processing are taken and

implemented. This is only relevant where you carry out cross-border processing – ie you

have establishments in more than one EU member state or you have a single establishment in the EU that carries out processing which substantially affects individuals in other EU states.

If this applies to your organisation, you should map out where your organisation makes its most significant decisions about its processing factivities. This will help to determine your ‘main establishment’ and therefore your lead supervisory authority.

The Article 29 Working party has produced guidance on identifying a controller or processor’s lead supervisory authority.