News & Insights

We hold our hands up that this isn’t the most exciting topic but if you collect personal data then we would recommend you know the following General Data Protection Regulation (GDPR) as it will apply in the UK from 25th May 2018.

The GDPR applies to “Data Controllers’ and “Data Processors” which are simply;

The Data Controller controls how and why personal data is processed.

The Data Processor acts on the Data Controller’s behalf to collect the data.

For example, if you have a website selling shoes you might use a third party to collect payment (data) for your products – they will be the Data Processor.  You, the company instructing them controls the data and uses it accordingly, the Data Controller.

If you are a Data Processor, the GDPR places specific new legal obligations on you;

• You are required to maintain records of personal data (such as IP addresses) and processing activities.
• You will have significantly more legal liability if you are responsible for a breach.

However, if you are a Data Controller, the GDPR places further obligations on you to ensure your contracts with Data Processors comply with the GDPR.

The GDPR applies to both automated personal data and to manual filing systems where personal data are accessible according to specific criteria.

The GDPR requires you to show how you comply with the principles as defined in Article 5 of the GDPR;

(a) processed lawfully, fairly and in a transparent manner in relation to individuals;

(b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial purposes;

(c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed;

(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay;

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes subject to implementation of the appropriate technical and organisational measures required by the GDPR in order to safeguard the rights and freedoms of individuals;

(f) 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.

Article 5(2) requires that

“the controller shall be responsible for, and be able to demonstrate, compliance with the principles.”

Under the GDPR you need to identify a legal basis before you can process personal data under Article 6(1)(c) and (e).

“(c) processing is necessary for compliance with a legal obligation”;

“(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.”

The aspect that many companies are still not adhering to (and are therefore liable for prosecution consent under the GDPR) is that the form requires clear affirmative action. Pre-ticked boxes or inactivity does not constitute consent and therefore the data cannot be collected. Consent must be verifiable in some form of record of how and when consent was given.  In addition, individuals have a right to withdraw consent at any time via a designated email address.

If you do not comply with the new legislation then the ICO has the right to fine and in certain circumstances imprison you.

Data and BIG Data are now key valuable assets for any company, so it’s key to ensure that it is collected correctly, especially if you are looking to sell (or purchase) a company.  If not, the data cannot be used and transferred thereby reducing the value of the company.

Laceys deal with Data Protection, so if you collect data and are unsure whether your privacy policy needs updating (or you don’t yet have one) with the new legislation then please contact one of our Data Protection experts.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.