1. Data Protection: The new EU Regulation
Welcome. We’re just making the last few preparations for the webinar to start at Keep your speakers or headphones turned on and you will shortly hear a voice!
19th February 2016

2. This presentation is intended to help you understand aspects of the EU General Data Protection Regulation and related legislation. It is not intended to provide detailed advice on specific points, and is not necessarily a full statement of the law.

3. What Data Protection is about: 1
Protecting data
Protecting people 

4. What Data Protection is about: 2
Give us more money!
Support our campaign!
But of course we told your social worker
Privacy & choice

5. What Data Protection is about: 3
Individual rights, such as:
Right of Subject Access 
Right to opt out of direct marketing
Right to compensation for harm

6. The current legal framework
EC Directive 95/46/EC
 Data Protection Act 1998
 Similar legislation in most other European countries
Privacy & Electronic Communications (EC Directive) Regulations 2003
Non-statutory Guidance and Codes of Practice, including:
Information Commissioner
Institute of Fundraising

7. The new Regulation It’s a Regulation, not a Directive
First draft January 2012
Extensive negotiations between Commission, Parliament and Council over nearly four years
Final agreed draft December 2015
To be ratified imminently
Coming into force 2018
It’s a Regulation, not a Directive

8. Themes
“The processing of personal data should be designed to serve [hu]mankind” (Recital 3a)
More control over online services and large commercial organisations, especially multinationals
Emphasis on reducing risk
Limited extension of individual rights
Data Controller evidence of compliance

9. Main changes include: Definition of consent tightened up
… but still not always required
Tighter rules on children’s data (under 16), especially online
More transparency requirements
Data minimisation and pseudonymisation
More rights to have data erased
Provision for allocating responsibilities between joint Data Controllers
Data Processors carry more direct responsibilities
No registration: Data Controller has to keep records
Requirement to notify serious breaches
Bigger fines
Additional responsibilities on large organisations and those doing riskier processing

10. Consent
Consent is “any freely given, specific, informed and unambiguous indication of his or her wishes by which the data subject, either by a statement or by a clear affirmative action, signifies agreement to personal data relating to them being processed” (Article 4(8))
“Where processing is based on consent, the controller shall be able to demonstrate that consent was given by the data subject … ” (Article 7(1))
“Silence, pre-ticked boxes or inactivity should … not constitute consent.” (Recital 25)

11. When is consent not required?
Similar conditions to now, including:
Processing is lawful [if it is] “necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child. …” (Article 6(f) )
“The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.” (Recital 38)

12. Where does this leave fundraising?
Definitions unclear: when does a communication become marketing?
How does the fundraising Code relate to the marketing provisions of the Regulation?
New Regulation does not rescind PECR
Therefore, consent is likely to remain the only reliable basis for direct unsolicited fundraising
Consent has to involve “clear affirmative action”
Therefore, are we looking at opting in only?

13. Tighter rules on children’ data
Children deserve specific protection … as they may be less aware of risks, consequences, safeguards and their rights … . This concerns especially the use of personal data of children for the purposes of marketing or creating personality or user profiles and the collection of child data when using services offered directly to a child. … (Recital 29)
Where [consent] applies, in relation to the offering of information society services directly to a child, the processing of personal data of a child below the age of 16 years … shall only be lawful if … consent is given … by the holder of parental responsibility over the child.

14. More transparency requirements (Article 14)
Data Subjects must usually be made aware of:
the identity and the contact details of the controller
the purposes as well as the legal basis of the processing
where relevant the legitimate interests
any recipient(s); any overseas transfers
the storage period or criteria for deletion
right of access to data and rectification or erasure
right to withdraw consent at any time
the right to lodge a complaint to a supervisory authority
whether the provision of personal data is [contractually] required [or] the data subject is obliged to provide the data and … possible consequences of failure to provide [it]

15. Minimisation and pseudonymisation
Principle 3 now says data must be: “adequate, relevant and limited to what is necessary … (“data minimisation”)”
Data protection by design and by default (Article 23) stresses pseudonymisation as a security measure – especially for ‘big data’ analysis, for example
Pseudonymisation means that the person is still identifiable but their identity can only be retrieved with the use of additional data which is held separately and securely

16. Rights to erasure, etc. Data Subjects have the rights to require:
Rectification of inaccurate data (Article 16)
Completion of incomplete data (Article 16)
Erasure (“right to be forgotten”), with exceptions, but including removal of links (Article 17)
Restriction of processing in certain cases (Article 17a)
Compensation for “material or immaterial damage” (Article 77)
Also the right to complain to supervisory authority

17. Data Controller responsibilities
Technical and organisational measures to ensure full compliance (Article 22)
Appropriate policies (including Data Protection by design and by default) (Article 22)
Records of processing – what, who, how, etc. (Article 28)
… but no registration (notification)
Joint Controllers must transparently “determine their respective responsibilities” – but each can be “liable for the entire damage” caused by a breach (Articles 24 & 77)

18. Data Processor responsibilities
Data Controller still has responsibility to select competent Processors
More detailed rules about what has to be in the contract
Standard contracts should be available
Processor may be liable for breaches and other compliance (many obligations refer to the “controller or processor” – including processors based overseas)

19. Notification of serious breaches
Must report (preferably within 72 hours) unless the breach is unlikely to result in a risk to individuals
Individuals must usually be notified where the breach is likely to result in a high risk to them
Processors must notify breaches to Controllers

20. Penalties
Breaches subject to two levels of penalty, depending on the breach:
€10 million or 2% of total worldwide turnover
€20 million or 4% of total worldwide turnover
(whichever is higher, in each case)

21. Large organisations & riskier activities
Impact assessments before starting innovative processing
Data Protection Officer, with specified competence and duties

22. Selected other changes
Overseas transfers – slight loosening of the conditions that legitimise transfers
Jurisdiction over multi-national companies operating into Europe (including web-based)
Scope for national variations in a number of places

23. Many thanks Presentation to follow (link in email)
Option to download 20-page summary of key parts
Any questions, clarifications, feedback: