Preparing for EU GDPR

Preparing for
EU GDPR
Alan Calder
Founder & Executive Chair
IT Governance Ltd
January 2017
www.itgovernance.co.uk

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© IT Governance Ltd 2016
Copyright IT Governance Ltd 2016 – v1.0
Introduction
• Alan Calder
• Founder – IT Governance Ltd
• The single source for everything to do with IT governance, cyber risk
management and IT compliance
• IT Governance: An International Guide to Data Security and ISO 27001/ISO
27002, 6th Edition (Open University textbook)
• http://www.itgovernance.co.uk
•

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IT Governance Ltd: GRC One-Stop-Shop
All verticals, all sectors, all organizational sizes

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Agenda
• An overview of the regulatory landscape and territorial scope
• Principles of the EU GDPR
• Breach notification rules
• Data subject rights
• Changes to consent
• Processor liabilities
• Role of the Data Protection Officer
• International transfers
• Regulators and pan-European consistency
4

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The nature of European law
• Two main types of legislation:
– Directives
º Require individual implementation in each Member State
º Implemented by the creation of national laws approved by the parliaments of
each Member State
º European Directive 95/46/EC is a Directive
º UK Data Protection Act 1998
– Regulations
º Immediately applicable in each Member State
º Require no local implementing legislation
º EU GDPR is a Regulation

Data protection model
under GDPR
Information Commissioner’s Office (ICO)
(supervising authority)
Data controller
(organisations)
Data subject
(individuals)
Data
processor
Third
countries
Third
parties
Duties
Rights
Disclosure?
Inform?
Security?
Guarantees?
Assessment
Enforcement
European Data Protection Board

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Articles 1 – 3: Who, and where?
• Natural person = a living individual
• Natural persons have rights associated with:
– The protection of personal data
– The protection of the processing personal data
– The unrestricted movement of personal data within the EU
• In material scope:
– Personal data that is processed wholly or partly by automated means;
– Personal data that is part of a filing system, or intended to be.
• The Regulation applies to controllers and processors in the EU
irrespective of where processing takes place.
• It applies to controllers not in the EU

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Remedies, liabilities and penalties
• Natural Persons have rights
– Judicial remedy where their rights have been infringed as a result of the
processing of personal data.
º In the courts of the Member State where the controller or processor has an establishment.
º In the courts of the Member State where the data subject habitually resides.
– Any person who has suffered material, or non-material, damage shall have the
right to receive compensation from the controller or processor.
– Controller involved in processing shall be liable for damage caused by
processing.
• Administrative fines
– Imposition of administrative fines will in each case be effective, proportionate,
and dissuasive
º taking into account technical and organisational measures implemented;
– € 10,000,000 or, in the case of an undertaking, up to 2% of the total
worldwide annual turnover of the preceding financial year
– € 20,000,000 or, in case of an undertaking, 4% total worldwide annual
turnover in the preceding financial year

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Article 33: Personal Data Breaches
• The definition of a Personal Data Breach in GDPR:
– A 'personal data breach' means a breach of security leading to the accidental or
unlawful destruction, loss, alteration, unauthorised disclosure of, or access to,
personal data transmitted, stored or otherwise processed.
• Obligation for data processor to notify data controller
– Notification without undue delay after becoming aware
– No exemptions
– All data breaches have to be reported
• Obligation for data controller to notify the supervisory authority
– Notification without undue delay and not later than 72 hours
– Unnecessary in certain circumstances
– Description of the nature of the breach
– No requirement to notify if unlikely to result in a high risk to the rights and
freedoms of natural persons
– Failure to report within 72 hours must be explained

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Article 99: Entry into force and
application
This Regulation shall be binding in its entirety and directly
applicable in all Member States.
KEY DATES
• On 8 April 2016 the Council adopted the Regulation.
• On 14 April 2016 the Regulation was adopted by the European Parliament.
• On 4 May 2016, the official text of the Regulation was published in the EU Official
Journal in all the official languages.
• The Regulation entered into force on 24 May 2016, and applies from 25 May 2018.
• http://ec.europa.eu/justice/data-protection/reform/index_en.htm
• ICO AND UK GOVERNMENT CONFIRM THAT GDPR WILL APPLY IN THE UK
IRRESPECTIVE OF BREXIT
Final Text of the Directive: http://data.consilium.europa.eu/doc/document/ST-
5419-2016-REV-1/en/pdf

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Rights of Data Subjects
• The controller shall take appropriate measures to provide any
information … relating to processing to the data subject in a concise,
transparent, intelligible and easily accessible form, using clear and plain
language (Article 11-1)
• The controller shall facilitate the exercise of data subject rights (Article
11-2)
– Rights to
º Consent
º Access
º Rectification
º Erasure
º Restriction
º Objection
– the right to data portability;
– the right to withdraw consent at any time;
– the right to lodge a complaint with a supervisory authority;
– The right to be informed of the existence of automated decision-making, including
profiling, as well as the anticipated consequences for the data subject.

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The principle of Accountability and what
it means
• Article 5: Principles relating to processing of personal data
• “The controller shall be responsible for, and be able to demonstrate
compliance with, paragraph 1 ('accountability'). “
1 • Processed lawfully, fairly and in a transparent manner
2 • Collected for specified, explicit and legitimate purposes
3 • Adequate, relevant and limited to what is necessary
4 • Accurate and, where necessary, kept up to date
5 • Retained only for as long as necessary
6 • Processed in an appropriate manner to maintain security
Accountability

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ICO on Accountability
• “The new legislation creates an onus on companies to understand
the risks that they create for others, and to mitigate those risks. It’s
about moving away from seeing the law as a box ticking exercise,
and instead to work on a framework that can be used to build a
culture of privacy that pervades an entire organisation.”
• “The GDPR mandates organisations to put into place
comprehensive but proportionate governance measures.”
• “It means a change to the culture of an organisation. That isn’t an
easy thing to do, and it’s certainly true that accountability cannot be
bolted on: it needs to be a part of the company’s overall systems
approach to how it manages and processes personal data.”
• Speech to ICAEW 17 January 2017

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Application of the principle of
accountability
• Governance: Board accountability
– Corporate risk register
– Nominated responsible director
• Clear roles and responsibilities
– Data Protection Officer
• Privacy Compliance Framework
– PIMS/ISMS
– Cyber incident response
– Cyber Essentials a minimum security standard
– Certification and data seals (Article 42) – ISO 27001
• Data Protection by Design and by Default
– Data Flow Audits
– Data Protection Impact Assessments (DPIA)
º Mandatory for many organizations
º Legal requirements around how performed and data collected

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Article 5 & 6: Lawfulness
• Secure against accidental loss, destruction or damage
• Processing must be lawful – which means, inter alia:
– Data subject must give consent for specific purposes
– Other specific circumstances where consent is not required
º So that controller can comply with legal obligations etc
• One month to respond to Subject Access Requests – & no charges
• Controllers and processors clearly distinguished
– Clearly identified obligations
– Controllers responsible for ensuring processors comply with contractual terms for
processing information
– Processors must operate under a legally binding contract
º And note issues around extra-territoriality

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Articles 7 - 9: Consent
• Consent must be clear and affirmative
– Must be able to demonstrate that consent was given
– Silence or inactivity does not constitute consent
– Written consent must be clear, intelligible, easily accessible, else not binding;
– Consent can be withdrawn any time, and as easy to withdraw consent as give it;
• Special conditions apply for child (under 16) to give consent
• Explicit consent must be given for processing sensitive personal
data
– Race, ethnic origin, gender, etc
– Specific circumstances allow non-consensual processing eg to protect vital
interests of the data subject
• Secure against accidental loss, destruction or damage (article 5)

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Articles 12 - 18: Transparency
• Any communications with a data subject must be concise,
transparent, intelligible
• Controller must be transparent in providing information about itself
and the purposes of the processing
• Controller must provide data subject with information about their
rights
• Specific provisions (Article 14) covering data not obtained directly
from the data subject
• Rights to access, rectification, erasure (‘right to be forgotten’), to
restriction of processing, and data portability

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Article 25 et seq: Privacy by Design
• Privacy must now be designed into data processing by default
• Data controllers/processors not established in the EU must
designate a representative
• Data Privacy Impact Assessments mandatory (article 35)
– For technologies and processes that are likely to result in a high risk to rights of
data subjects
• Data audits
– GDPR applies to existing data, as well as future data
– Privacy may have to be designed in retrospectively
– Organizations need to identify what PII they hold, where, on what grounds, and
how it is secured in a way that will meet requirements of GDPR

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Article 32: Security of Personal Data
• Sixth Principle: Data must be processed “in a manner that
ensures appropriate security of the personal data, including
protection against unauthorised or unlawful processing and
against accidental loss, destruction or damage, using
appropriate technical or organisational measures”
• A requirement for data controllers and data processors to
implement a level of security appropriate to the risk, including:
– pseudonymisation and encryption of personal data;
– ensure the ongoing confidentiality, integrity and availability of
systems;
– a process for regularly testing, assessing and evaluating the
effectiveness of security measures;
– security measures taken need to comply with the concept of privacy
by design;
• Certifications demonstrate intent: Cyber Essentials, ISO
27001

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Privacy
Compliance
Framework
A personal information
management system
provides a framework for
maintaining and
improving compliance
with data protection
requirements and good
practice.

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Article 33: Data Breaches
• Mandatory data breach reporting – within 72 hours
– Describe actions being taken to
º Address the breach
º Mitigate the consequences
– Data subjects contacted ‘without undue delay’
º Unnecessary if appropriate protection is already in place
º Consider encryption for all mobile devices, for all databases, and for email
– Penetration testing to identify potential attack vectors should be standard
• Failure to report within 72 hours must be explained

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Article 37 et seq: Data Protection Officer
(DPO)
• DPO mandatory in organizations processing
substantial volumes of PII (article 37)
• A protected position, reporting directly to
senior management
– Appropriately qualified
– Consulted in respect of all data processing
activities
• Will be a ‘good practice’ appointment
outside the mandatory appointments
• Most staff dealing with PII (eg HR,
marketing, etc) will need at least basic
training
• Staff awareness training also critical
(accidental release of PII could have
financially damaging consequences)
www.itgovernance.co.uk/shop/p-1833-certified-eu-general-data-protection-regulation-gdpr-foundation-and-practitioner-
combination-online-course.aspx

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Article 40 et seq: Certifications
• Requirement is to apply appropriate administrative organizational
and administrative measures.
• How can you demonstrate this?
– Codes of conduct and certifications may be used to demonstrate compliance with
GDPR
– Recognised international standards (eg ISO/IEC 27001)
– Recognised national management standards (eg BS 10012 – for a PIMS or
Personal Information Management System)
– Recognised national technical standards (eg Cyber Essentials in the UK)
– Emergence of new standards, privacy seals etc across EU
• Certification does not absolve controller of need to comply

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Article 44: International Transfers
• Any transfer of personal data by controller or processor shall take place
only if certain conditions are complied with:
– Transfers on the basis of adequacy;
– Transfers subject to the appropriate safeguards
– Binding corporate rules apply.
• All provisions shall be applied to ensure the protection of natural
persons is not undermined.
• To countries with similar data protection regulations
– Cloud providers are a key risk area
– Highest penalties apply to breaches of these provisions
• October 2015: Court of Justice declared Safe Harbor invalid
• April 2016: serious flaws in Privacy Shield:
– fails to meet EU adequacy standards;
– lack of a data retention principle;
– indiscriminate collection of data for national security purposes;
– insufficiency of legal remedies.
– Privacy Shield discussions still ongoing

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Independent Supervisory Authorities
• Member states must create independent supervisory authorities and
resource them appropriately
– Tasks:
– Monitor and enforce
– Communicate
– Promote awareness
• Powers:
– To investigate, correct, advise, enforce
• Leading Supervisory Authority for multi-state controllers

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European Data Protection Board (EDPB)
• Ensure cooperation, communication, consistency and mutual
assistance between national supervisory authorities
• Monitor and ensure correct application of the Regulation
• Examine any question dealing with its application
• Ie: Ensure a level playing field

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ICO – Final Words
• “Accountability encourages an upfront investment in privacy fundamentals, but it offers a payoff
down the line, not just in better legal compliance, but a competitive edge. We believe there is a
real opportunity for organisations to present themselves on the basis of how they respect the
privacy of individuals and over time this can play more of a role in consumer choice.
• That’s the carrot for getting it right. And there’s a pretty big stick too.
• I mentioned earlier that the GDPR will increase regulatory powers.
• For the most serious violations of the law, my office will have the power to fine companies up to
twenty million Euros or four per cent of a company’s total annual worldwide turnover for the
preceding year.
• In an ideal world we wouldn’t need to use those sticks, but policy makers are clear that breaches
of personal privacy are a serious matter. Last year we issued more than one million pounds in
fines for breaches of the Data Protection Act, so it’s not a power we’re afraid to use.
• And our enforcement powers aren’t just for ‘typical’ data breaches, like laptops left on trains or
information left open to a cyber attack. The GDPR gives regulators the power to enforce in the
context of accountability – data protection by design, failure to conduct a data protection impact
assessment, DPOs and documentation. If a business can’t show that good data protection is a
cornerstone of their practices, they’re leaving themselves open to a fine or other enforcement
action that could damage bank balance or business reputation.”
• Speech to ICAEW 17 January 2017

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Nine Steps to GDPR compliance
1. Establish governance framework – board awareness, risk register,
accountability framework, review
2. Appoint and train a DPO/SDPO
3. Data inventory – identify processors, unlawfully held data
4. Data flow audit
5. Compliance gap analysis
1. Ensure FPN and SAR documents and processes are robust and legal
6. PIA and security gap analysis
7. Remediate
1. Privacy compliance framework
2. Cyber Essentials/Ten Steps to Cyber Security/ISO 27001
8. Data breach response process (NB: Test!)
9. Monitor, audit and continually improve
NB: steps can be tackled in parallel

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IT Governance: GDPR self-help
• 1-Day accredited Foundation course (classroom,
online, distance learning
– www.itgovernance.co.uk/shop/product/certified-eu-general-data-
protection-regulation-foundation-gdpr-training-course
• 4-Day accredited Practitioner course (classroom,
online, distance learning)
– www.itgovernance.co.uk/shop/product/certified-eu-general-data-
protection-regulation-practitioner-gdpr-training-course
• Pocket guide
www.itgovernance.co.uk/shop/Product/eu-gdpr-a-
pocket-guide
• Implementation Manual
www.itgovernance.co.uk/shop/Product/eu-general-
data-protection-regulation-gdpr-an-implementation-and-
compliance-guide
• Documentation toolkit
www.itgovernance.co.uk/shop/product/eu-general-data-protection-
regulation-gdpr-documentation-toolkit

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IT Governance: GDPR Consultancy
• Gap analysis
• Our experienced data protection consultants can assess the exact standing of your current legal
situation, security practices and operating procedures in relation to the DPA or the GDPR.
• Data flow audit
• Data mapping involves plotting out all of the organisations’ data flows, which involves drawing up
an extensive inventory of the data to understand where the data flows from, within and to. This
type of analysis is a key requirement of the GDPR.
• Information Commissioner notification support (a legal requirement for DPA compliance)
• Organisations that process personal data must complete a notification with the Information
Commissioner under the DPA.
• Implementing a personal information management system (PIMS)
• Establishing a PIMS as part of your overall business management system will ensure that data
protection management is placed within a robust framework, which will be looked upon favourably
by the regulator when it comes to DPA compliance.
• Implementing an ISMS compliant with ISO 27001
• We offer flexible and cost-effective consultancy packages, and a comprehensive range of
bespoke ISO 27001 consultancy services, that will help you implement an ISO 27001-compliant
ISMS quickly and without the hassle, no matter where your business is located.
• Cyber health check
• The two-day Cyber Health Check combines on-site consultancy and audit with remote
vulnerability assessments to assess your cyber risk exposure.
www.itgovernance.co.uk/dpa-compliance-consultancy

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Questions?
acalder@itgovernance.co.uk
0845 070 1750
www.itgovernance.co.uk

Preparing for EU GDPR

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Preparing for EU GDPR