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November, 16 2018
November, 15 2018
The Beginning of a New Era to Personal Data protection By: Chambersfield Economides Kranos
Personal Data - New Legal Framework - Practical Application
Following four years of debate, the (EU) 2016/679 regulation of the European Parliament and Council of the 27th of April 2016, is enforced.
The regulation refers to the protection of individuals, concerning the process of their personal data, as well as, the free exchange of those data (General Regulation for Data Protection).
The regulation of the 27th of April 2016 (having a two-year harmonization period) entered into force on the 25th of May 2018.
The aforementioned regulation replaced the Directive 95/46 / EC, the provisions of which were transferred to the 2001 Personal Data Processing (Protection of Individuals) Law (Law 138 (I) / 2001).
The regulation, unlike the Directive, ensures a high level of harmonization and it is directly applicable to all European Member States.
The protection of natural persons, in regard to the processing of their personal data, it is a fundamental right. The Article 8 (1) of the Charter of Fundamental Rights of the European Union and Article 16 (1) of the treaty for the operation of the European Union (TFEU), specify that every person has the right to protect its personal data.
The worldwide integration and rapid development of the data processing, as well as, the functioning of a global market, have resulted in an unparalleled increase flow of data collection, processing and cross-border exchange, from both private companies and public authorities.
The Regulation aims the uniformity and decisive protection of the privacy, of the citizens of the European Union. This requirement ascended, due to the intense daily increasing trend of personal data exchange, worldwide, which in many cases was subject to violations of the personal data of individuals.
Interpretation of Definitions
According to the provisions of the Regulation, "personal data" is defined as the data and any kind of information that directly or indirectly identify an individual. This information may relate to his / her private, professional and / or personal life.
The processing of personal data, in accordance with the Article 4 (2) of the Regulation, indicates that any act or series of operations carried out with or without the use of automated means, such as: collecting, recording, organizing, structuring, storing, adapting or modifying, recovering, searching of information, using, disclosing by transmission, distributing or any other form of suppling, associating or combining, restraining, removing or destructing of data.
"Controller" is the natural or legal person, public authority, service or any other body that defines the purposes and manners of processing personal data.
"Processor" is the natural or legal person, public authority, service or any other entity, which process the personal data on behalf of the controller.
The Basic Principles of the Regulation
The basic principle of the Regulation is the harmonization and introduction of a set of data protection standards, which will apply uniformly, throughout the European Union.
Undoubtedly, one of the biggest changes in the regulatory field of personal data protection derives mainly, from the extended jurisdiction of the Regulation, in all the European member states. The Regulation applies to all companies and organizations, which process personal data of people residing in the European Union, irrespective of the company's registered office location.
Additionally, the Regulation refers to all private and public enterprises, as well as, government authorities that collect, process and generally manage personal data of customers, employees, associates or other natural persons, which are European citizens.
In summary, the new Regulation applies to all businesses that process personal data of European citizens, regardless of their location (inside and outside the European Union).
Moreover, an equally important characteristic of the Regulation is to introduce and strengthen the rights of individuals, whose personal data are being processed.
Additionally, it is notable to mention that the new Regulation introduced new obligations to businesses on the way they process personal data.
In fact, the Regulation is significantly increases the obligations of all entities that manage personal data of European citizens.
Severe amount penalties, according to Article 83 of the Regulation will be imposed to offenders, with fines ranging from €10,000,000 to €20,000,000 or from 2% to 4% of the total annual global turnover of the previous business year of a business (applies to whichever is the higher). The fines will be applied according to the nature of the violation. Hence, the heavier fines will be exercised for breaches concerning the basic principles of the Regulation, related to data processing, data transfer in a third country without the consent of the individual and to the non-compliance with an order or limitation of the data processing, imposed by the supervisory authority.
Decisions, which are issued by the supervising authorities, in the context of the fine exercise power, will be subject to appeal before the Administrative Court on the basis of Article 146 of the Constitution.
Furthermore, another important fact of the Regulation is to strengthen the existing principles governing the processing of personal data, and according to Article 5 of the Regulation, they state that personal data must:
- Be subjected to legitimate and lawful processing with a clear purpose (lawfulness, fairness and transparency).
- Be collected for specified, explicit and legitimate purposes, and, not to be further processed in a manner incompatible with those purposes (purpose limitation).
- Be appropriate, relevant and limited to what is necessary for the purposes for which they are processed (data minimization).
- Be accurate and proceed with all reasonable steps to immediately delete or correct personal data that is inaccurate (accuracy).
- Be stored, only for as long as it is required for the purposes of the processing of personal data and on the basis of the applicable legal requirements of each organization (storage period limitation).
- Be processed in a manner that assures the appropriate security of personal data, including the protection against unauthorized or unlawful processing, loss, destruction or deterioration, using appropriate technical or organizational measures (integrity and confidentiality)
- Entities collecting and processing personal data are responsible and must be able, at all times, to demonstrate compliance with all the principles governing the processing of personal data (accountability).
Rights of individuals
The Regulation based on the structure of the existing legislative framework, strengthens the rights deriving from the 1995 Directive and introduces new rights and obligations.
Indicative is the explicit legislative fortification of the “right to be forgotten”, which is the right that allows the individual to maintain control of his / her personal information, mainly in the cyberspace.
The imperative rights of individuals, whose personal data are being processed, are:
- The right to object at any time, to the processing of their personal data.
- The right to transfer the data that are based on their consent, on receiving or requesting the transfer of their data from one company to another.
- Right to the information
- Right to access the data
- Right to correct the data
- The right to “be forgotten” or delete the personal data
- The right to limit the processing of date, when the accuracy of the data is in dispute or is illegal or when the company no longer needs those data
- The right to object to an automated decision
The Regulation significantly increases the obligations of businesses towards the protection of the personal data of their customers and employees, without though constraining the collection and processing of data for businesses.
Instead, the process of data will be based on a sequence of restriction series and new obligations for companies concerning:
- The processing of personal data throughout its life cycle, from collection to destruction
- Portability of data to other countries
- Protecting the rights of physical entities
- Security (confidentiality) of personal data
- The notification actions that the business should proceed in the event of a violation
In order for a business to be able to demonstrate its compliance with the provisions of the Regulation, it is required to implement procedures that follow the principles governing the processing of personal data.
In particular, the Regulation imposes a series of new obligations on businesses including:
- Development of the appropriate technical and organizational measures. Business entities must apply all the appropriate technical and organizational measures for the protection of the data (i.e. pseudonym, minimization of data etc.)
- Formation of the processing responsibilities, where joint controllers are in place.
- Incorporation of technological tools, from the manufacturers, which will provide the necessary protection to the user's personal data during the usage of the product or service that, must be applicable from the creation, design, implementation etc.
- Manufacturer's responsibility to protect data by definition. Meaning the application of the appropriate technical and organizational measurements, so as to ensure by definition that only the necessary data are being process per purpose.
- Strengthening the conditions for obtaining the consent of the individual. If the consent of the physical person’s data is provided in the context of a written declaration, which also concerns other matters, the request for the consent should be stated clearly with a distinctive way that will separate it from the other subjects, and, in a comprehensible, accessible form with the use of clear and simple wording.
- Acquisition of consent for minors, under the age of 16, by a person who has the parental responsibility of the child, in relation to the services of the Information Society.
- Disclosure and announcement of data breaches. The controller is required to notify the competent supervisory authority, as well as, the natural person who is the owner of the data, without any delay, within 72 hours the breach of the personal data.
- The retain of records of the processing activities.
- An Impact assessment on data protection and prior consultation. Meaning, an assessment should take place specifying the risk, impact and actions, before any process that may involve a high risk
- The formation of codes of conduct in the business, which will specify how the personal data will be processed.
- The Establishment of data protection certification mechanisms that will demonstrate the Regulation compliance.
- Establishment of a Data Protection Officer. This is a new obligation provided by the Regulation, for persons who process personal data (definition of Data Protection Officer). This person enacts as the depositary of the personal data, and, is responsible, inter alia, for (i) monitoring company’s compliance according to the Regulation (ii) contacting with the competent supervisory authority, (iii) advising the company for any matter in relation to the protection of personal data and (iv) providing all the information to the persons’, whose personal data are being processed. The Data Protection Officer is being defined according to professional qualifications and may be a member of the company's staff or perform the duties on a service contract notion.
The obligation for appointing a Data Protection Officer is formed when:
- The processing is performed by a public authority
- There is a regular and systematic monitoring of physical persons data, on a large scale
- There is a process of special categories of data, or, the data are relating to criminal convictions and offenses
A "large scale", according to the Regulation, is when there is a process of a significant amount of data, or for a long duration of time, or when a large number of people are affected, or when the processing covers a large geographical area. Hospitals, banks, educational institutions, insurance companies, telecommunication services, internet search engine platforms etc, have large-scale monitoring.
Prerequisites for a lawful processing of personal data:
According to the Article 6 of the Regulation, in order for a process of personal data to be lawful, at least one of the following conditions should be applied:
- The person has given the consent to process his / her personal data
- The process should be necessary for the performance of a contract
- The process should be a necessity having the legal conformity of the entity or organization for processing the personal data
- The process is necessary for safeguarding the vital interest of a person
- The process is necessary for the fulfillment of a duty that is being performed for the public interest
- The process is necessary for the purposes of the legitimate interests pursued by the organization.
The processing of specific categories of personal data, it is only permitted when there is an explicit consent for the individual, performed within the labor law, social security and protection, or, when there is a vigorous interest.
Consent in accordance to Articles 4 and 7 of the Regulation, is the most common legal framework of personal data processing. The Regulation becomes rigorous under the conditions, which consent is considered as valid. "Valid consent" means any indication of will; free, specific, explicit, and informed of the procedures of personal data, relating to the individual. Silence, pre-filled boxes, or inactivity are not considered as consent. Consent should cover all the processing activities carried out for the same purpose or for the same purposes. When the process includes multiple purposes, consent should be given for all these purposes, separately.
As far as concern the children under the age of 16, who fall into the category of sensitive persons, and, therefore are not in the position to cope with consciousness the data processing, their consent in order to be considered valid, should be given by a person who has the parental responsibility of the child.
The harmonization and modification of each organizational structure, which maintains a database has already begun. In summary, the steps for the harmonization of the companies with the new Regulation are as follows:
- Appropriate training and briefing of the staff and customers, in a simple language, of the purposes of processing the data, the length of time that the personal data will be retained and the business identity
- Incorporating in their procedures, the rights of individuals of their data
- Development of the appropriate security measurements and necessary policies for the protection of the information
- Provision of the appropriate technical and organizational measures to ensure the availability of information (Business Continuity Plan)
- An analysis of the consequences that may arise from privacy violations (Data Protection Impact Assessment)
- Privacy protection consideration during the design of products and services
- Informing competent authorities within 72 hours, of the detection of system breaches and data loss
- Appointment of a data protection officer (DPO), as well as, persons who will have access to the data
- Implementation of an action plan that will deal with the confrontation of system breaches and data loss.
The major sanctions and the innovations of the existing legal framework of the protection of personal data introduced by the Regulation, specify clearly the objective of the new regulation, which is none other than the creation of a single, stricter and adequate framework for the protection of personal data, which all Member States should apply.
The collection and processing of citizens' personal data will now be based, on a balanced system governed by the trust between individuals and organizations, which the collection processing data activities will be under the notion of full transparency.
Citizens will have the opportunity to know, which organizations hold and manage their personal data, having the right to submit complain to the supervisory authority, when a violation and / or an incorrect processing of their personal data has been occurred.