The General Data Protection Regulation (GDPR) (EU) 2016/679 is a regulation in EU law on data protection and privacy for all individuals within the European Union (EU) and the European Economic Area (EEA). It also addresses the export of personal data outside the EU and EEA. The GDPR aims primarily to give control to citizens and residents over their personal data and to simplify the regulatory environment for international business by unifying the regulation within the EU.
Superseding the Data Protection Directive 95/46/EC, the regulation contains provisions and requirements pertaining to the processing of personally identifiable information of individuals (formally called data subjects in the GDPR) inside the European Union, and applies to all enterprises, regardless of location, that are doing business with the European Economic Area. Business processes that handle personal data must be built with data protection by design and by default, meaning that personal data must be stored using pseudonymisation or full anonymisation, and use the highest-possible privacy settings by default, so that the data is not available publicly without explicit consent, and cannot be used to identify a subject without additional information stored separately. No personal data may be processed unless it is done under a lawful basis specified by the regulation, or if the data controller or processor has received explicit, opt-in consent from the data subject. The data subject has the right to revoke this permission at any time.
A processor of personal data must clearly disclose any data collection, declare the lawful basis and purpose for data processing, how long data is being retained, and if it is being shared with any third-parties or outside of the EU. Data subjects have the right to request a portable copy of the data collected by a processor in a common format, and the right to have their data erased under certain circumstances. Public authorities, and businesses whose core activities centre around regular or systematic processing of personal data, are required to employ a data protection officer (DPO), who is responsible for managing compliance with the GDPR. Businesses must report any data breaches within 72 hours if they have an adverse effect on user privacy.
It was adopted on 14 April 2016, and after a two-year transition period, became enforceable on 25 May 2018. Because the GDPR is a regulation, not a directive, it does not require national governments to pass any enabling legislation and is directly binding and applicable. With the United Kingdom scheduled to leave the European Union in 2019, the UK granted royal assent to the Data Protection Act 2018 on 23 May 2018, which contains equivalent regulations and protections.
The regulation applies if the data controller (an organisation that collects data from EU residents), or processor (an organisation that processes data on behalf of a data controller like cloud service providers), or the data subject (person) is based in the EU. Under certain circumstances, the regulation also applies to organisations based outside the EU if they collect or process personal data of individuals located inside the EU. The regulation does not apply to the processing of data by a person for a “purely personal or household activity and thus with no connection to a professional or commercial activity.” (Recital 18)
According to the European Commission, “personal data is any information relating to an individual, whether it relates to his or her private, professional or public life. It can be anything from a name, a home address, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer’s IP address.”
The regulation does not purport to apply to the processing of personal data for national security activities or law enforcement of the EU; however, industry groups concerned about facing a potential conflict of laws have questioned whether Article 48 of the GDPR could be invoked to seek to prevent a data controller subject to a third country’s laws from complying with a legal order from that country’s law enforcement, judicial, or national security authorities to disclose to such authorities the personal data of an EU person, regardless of whether the data resides in or out of the EU. Article 48 states that any judgement of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may not be recognised or enforceable in any manner unless based on an international agreement, like a mutual legal assistance treaty in force between the requesting third (non-EU) country and the EU or a member state. The data protection reform package also includes a separate Data Protection Directive for the police and criminal justice sector that provides rules on personal data exchanges at national, European, and international levels.
A single set of rules will apply to all EU member states. Each member state will establish an independent supervisory authority (SA) to hear and investigate complaints, sanction administrative offences, etc. SAs in each member state will co-operate with other SAs, providing mutual assistance and organising joint operations. If a business has multiple establishments in the EU, it will have a single SA as its “lead authority”, based on the location of its “main establishment” where the main processing activities take place. The lead authority will act as a “one-stop shop” to supervise all the processing activities of that business throughout the EU (Articles 46–55 of the GDPR). A European Data Protection Board (EDPB) will co-ordinate the SAs. EDPB will replace the Article 29 Data Protection Working Party. There are exceptions for data processed in an employment context or in national security that still might be subject to individual country regulations (Articles 2(2)(a) and 88 of the GDPR).
Unless a data subject has provided explicit consent to data processing for one or more purposes, personal data may not be processed unless there is at least one legal basis to do so. They include:
- For the legitimate interests of a data controller or a third party, unless these interests are overridden by the Charter of Fundamental Rights (especially in the case of children).
- To perform a task in the public interest or in official authority.
- To comply with a data controller’s legal obligations.
- To fulfill contractual obligations with a data subject.
- To perform tasks at the request of a data subject who is in the process of entering into a contract with a data controller.
- To protect the vital interests of a data subject or another person.
If consent is used as the lawful basis for processing, consent must have been explicit for data collected and each purpose data is used for (Article 7; defined in Article 4). Data controllers must be able to prove “consent” (opt-in) and consent may be withdrawn. Consent for children, defined in the regulation as being less than 16 years old (although with the option for member states to individually make it as low as 13 years old (Article 8(1))), must be given by the child’s parent or custodian, and verifiable (Article 8).
Provision of a service to a data subject may not be contingent on consent to data processing that is not strictly necessary to use the service. (Article 7(4))
If consent was already provided under the Data Protection Directive for processing, a data controller does not have to obtain new/”refreshed” consent if the processing is documented and obtained in compliance with GDPR’s requirements (Recital 171).
- EU Data Protection page
- Procedure 2012/0011/COD, EUR-Lex
- Multilingual HTML and PDF regulation documents, EUR-Lex
- General Data Protection Regulation, final version dated 27 April 2016 (PDF)
- 2012/0011(COD) – Personal data protection: processing and free movement of data (General Data Protection Regulation), European Parliament
- Regulation (EU) 2016/679 of the European Parliament and of the Council 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
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