Do you have workforce in multiple countries including EU? Do you handle lot of personal and sensitive personal information of European citizens / residents? Are you performing background screening in EU countries?
If the answer is YES, gear up for the upcoming timeline for enforcement of the New “General Data Protection Regulation” (GDPR). You may think it is complicated to implement all controls under GDPR, well it is not, if you take the right approach.
In this series, we will take a closer look at,
– Summary of Key changes under GDPR which has an impact on screening
– Mapping of each key change to screening industry
– Structured approach to implement changes under GDPR for background screening organizations
This blog will provide you an insight into summary of key changes under GDPR and how those differ from the EU Directive 95/46/EC.
Existing European data protection rules mainly expressed via the EU Directive 95/46/EC, laid out a respectable foundation for the development of EU member states’ national legislation. Although respectable at the time of its introduction (in 1995), it lacked uniformity of data subjects’ rights across the EU and did not provide legal protection from inadequate personal data processing outside of EU.
While co-opting most (but not all) provisions from the 1995 Directive, GDPR remedies these shortcomings by extending its scope of application. It intensifies existing requirements and introduces several new ones for legal entities, in addition to multiplying the adverse effects for noncompliance and negligence.
There is more discrepancy between the “old” and “new” regulations than the changes covered below, but the most important differences, for most of the organizations, have been touched upon in this blog.
Regulations Beyond Borders (extra-territorial applicability)
The biggest change to the regulatory landscape of data privacy comes with the extended jurisdiction of the GDPR, as it applies to all companies processing the personal data of data subjects residing in the Union, regardless of the company’s location. Previously, territorial applicability of the directive was ambiguous and referred to data process ‘in context of an establishment’. GDPR makes its applicability very clear – it will apply to the processing of personal data originating in EU by controllers and processors, regardless of whether the processing takes place in the EU or not.
Under GDPR organizations who will breach the regulations, can be fined up to 4% of annual global turnover or €20 Million (whichever is greater). This is the maximum fine that can be imposed for the most serious violations e.g. Not having sufficient customer consent to process data or violating the core of Privacy by Design concepts.
The conditions for consent have been strengthened, and companies will no longer be able to use long illegible terms and conditions full of legalese, as the request for consent must be given in an intelligible and easily accessible form, with the purpose for data processing attached to that consent. Consent must be clear and distinguishable from other matters and provided in an intelligible and easily accessible form, using clear and plain language. It must be as easy to withdraw consent as it is to give it.
Data Protection Officers (DPO)
Currently, controllers are required to notify their data processing activities with local DPAs, which, for multinationals, can be a bureaucratic nightmare with most Member States having different notification requirements. Under GDPR it will not be necessary to submit notifications / registrations to each local DPA of data processing activities, nor will it be a requirement to notify / obtain approval for transfers based on the Model Contract Clauses (MCCs). Instead, there will be internal record keeping requirements, as further explained below, and DPO appointment will be mandatory only for those controllers and processors whose core activities consist of processing operations which require regular and systematic monitoring of data subjects on a large scale or of special categories of data or data relating to criminal convictions and offences.
Under the GDPR, breach notification will become mandatory in all member states where a data breach is likely to “result in a risk for the rights and freedoms of individuals”. This must be done within 72 hours of first having become aware of the breach.
Data Subject Rights
There have been changes in terms of right given to data subjects under GDPR. Few important changes are Data Erasure and Data Portability. Data Erasure, is the right to be forgotten which entitles the data subject to have the data controller erase his/her personal data, cease further dissemination of the data, and potentially have third parties halt processing of the data. Data Portability is the right for a data subject to receive the personal data related to them, which they have previously provided in a ‘commonly use and machine readable format’ and have the right to transmit that data to another controller.
New personal data protection requirements could be a sign of things to come in the future, EU citizens’ personal data (facts which could be used to identify a person) and privacy information (habits which reveal someone’s lifestyle) will come under much heavier legislator scrutiny, not just across the EU, but also the globe. The European Commission will have a much stronger swing with its now-existent multinational stick.
In the upcoming series of blog in conversations with our Director Compliance, we will take a deep dive into all key changes which will help you correlate these with screening industry. I am sure this series will provide answers to majority of your questions concerning GDPR and its applicability to background screening industry.
Disclaimer: This blog is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney.