20 January 2017
The Article 29 Working Party has published guidance on Data Protection Officers, the data portability right and on identifying a lead Supervisory Authority for the purposes of the General Data Protection Regulation.
What’s the issue?
The new General Data Protection Regulation (GDPR) will apply from 25 May 2018. It brings in a number or new rights for data subjects and obligations on data controllers and processors. As with any piece of legislation, particularly something as significant as the GDPR, it’s one thing understanding what’s written on the page and another applying it in your organisation.
What’s the development
The Article 29 Working Party (WP) (soon to become the European Data Protection Board), has, as promised, published guidance on the data portability right, appointing Data Protection Officers, and identifying the lead Supervisory Authority (SA). Further guidance on other aspects is expected later this year.
What does this mean for you?
For those to whom the concepts dealt with in the guidance are new, the WP puts flesh on the bones of the legislation and offers examples of best practice and interpretation.
Possibly of most interest is the guidance on identifying the lead SA. As the WP points out, the GDPR fails to deal with borderline cases and complex situations, particularly where non-EU organisations are involved. The WP says:
- an organisation which does not have an establishment in the EU will not be able to take advantage of the one stop shop mechanism. The appointment of a representative within the EU will not be sufficient to trigger the one stop shop mechanism. Controllers without an EU establishment will need to deal with the SA in each Member State in which they are active, through their local representative; and
- where there is cross-border processing with the data controller established in several Member States but where there is no central administration in the EU and the decisions around data processing are taken exclusively outside the EU, it is up to the organisation processing the data to designate the establishment which will act as the main establishment. Forum shopping is not allowed and the designated main establishment must have the authority to implement decisions about the data processing activities and take on liability for any breach of the GDPR with sufficient assets to support it. If the organisation does not designate a main establishment then it will not be possible for a lead SA to be appointed and the organisation will be regulated by relevant local SAs. The burden of proof in terms of the appointment of a main establishment lies with the relevant controllers and processors and the relevant SAs may decide which SA should be the lead authority by objectively assessing relevant evidence. The WP advises organisations to keep effective records to back up their choice of main establishment.
Key points of interest:
- Appointment of DPO – WP recommends documentation of internal analysis as to whether a DPO is mandatory
- What is a public authority? – to be determined in accordance with national law
- Recommendation – it is good practice to appoint a DPO where private organisations carry out public tasks or exercise public authority and the DPO should cover all processing operations
- What are “core activities”? – these should be interpreted as the key operations necessary to achieve the controller’s or processor’s goals
- What is “large scale” – factors to be considered include number of data subjects, volume of data, duration or permanence of processing and geographical extent
- What is “regular and systematic monitoring”? – all forms of tracking and profiling on the internet but not exclusive to the internet. The WP says “regular” means one or more of: ongoing or occurring at particular intervals, recurring or repeated at fixed times, constantly or periodically taking place. “Systematic” means one or more of: occurring according to a system, pre-arranged organised or methodical, taking place as part of a general plan for data collection; carried out as part of a strategy
- Data relating to criminal convictions – Article 37(1) discusses personal data relating to “criminal convictions and offences” in terms of what is special data but the WP says this should be read as “or”
- Controller/processor – where a controller is required to appoint a DPO, the processor may not necessarily be required to do so but it may be seen as good practice
- Duty of confidentiality – this should not prevent the DPO from contacting and seeking the advice of the SA
- Contact details – good practice to inform the SA and employees of the contact details of the DPO
- Resources and independence – emphasis on ensuring access to senior management, inclusion at all stages, no comeback for exercising duties
- DPO not personally responsible – duties like record keeping, appropriate organisational and technical measures etc. are the responsibility of data controller so DPO has no personal liability under the GDPR.
- Primary aim – to facilitate switching service providers
- Data portability tools – data controllers should offer different technical implementations of data portability rights e.g. direct download together with transmission direct to another data controller
- No connected data retention requirement – there is no additional requirement to start retaining data simply to service a potential data portability request
- Receiving unconnected data – where a new data controller receives personal data which is not relevant to the purpose of the new processing, it should not be kept and processed
- Purpose of new processing – the new data controller must clearly and directly state the purpose of the new processing before any request for transmission of the portable data
- Data portability vs other rights – a request to receive data is without prejudice to the other rights a data subject may have in relation to data processed by the controller to whom the portability request is made
- No automatic trigger or deletion – there is no automatic trigger for data erasure or a change of retention period where the data is requested under the portability right
- What data is covered? – processing operations must be based either on the data subject’s consent or on a contract to which the data subject is a party and the data processing must be carried out by automated means
- What data is covered by the portability right? – only personal data but this includes pseudonymous data which can be clearly linked to a data subject . Data controllers should not take an overly restrictive interpretation. Transferred records may contain personal data relating to multiple people. Where such records are transmitted, the new data controller should not process the personal data of third parties for any purpose which would affect their rights and freedoms
- Data provided by the data subject - this covers data knowingly and actively provided by the data subject and observed data provided by virtue of the data subject’s use of the service of device concerned. Inferred and derived data created by the data controller on the basis of provided data are not covered i.e. data about the data subject’s activity or behaviour is covered but analysis of that behaviour or activity is not
- Personal data concerning other data subjects – where personal data of a third party is included in a transferred data set, another ground for lawfulness of processing must be identified e.g. legitimate interest, in particular where the purpose of the data controller is to provide a service to the data subject that allows the latter to process personal data for a purely personal or household activity e.g. contacts in email or details of bank account activity. The new processing must not affect the rights and freedoms of the third parties and the receiving controller must not use the third party data for its own purposes
- Risk reduction – all data controllers, both sending and receiving, should take steps to reduce risks to third parties such as implementing tools to enable data subjects to select the relevant data and exclude data of other data subjects and to implement consent mechanisms for other data subjects involved
- Information to data subjects – data controllers must inform data subjects of their new right and the WP recommends that they clearly explain the differences between the types of data a data subject can receive using the portability and access rights. Data controllers are also urged to provide information about the data portability right before any account closure and receiving data controllers should provide data subjects with complete information about the nature of the personal data required to allow them to perform their services
- Identification of data subject – data controllers must implement an authentication procedure in order to strongly ascertain the identity of the data subject requesting his or her personal data or more generally exercising their rights under the GDPR
- Time of response – it is good practice to manage user expectations by defining the timeframe in which a data portability request can typically be answered and communicating this to data subjects
- Rejection of or charging for portability – there should be very few cases where a data controller can justify refusal to deliver information even where multiple requests are made, especially where a service specialises in automated processing of personal data e.g. an information society service provider. Overall costs of implementing processes to deal with data portability requests should not be taken into consideration when determining whether a request is excessive
- Expected data format – data must be provided in a format which supports re-use. Interoperability is the key outcome. While formats are not specified, those subject to costly licensing constraints would not be considered appropriate. The aim is interoperability, not compatibility of systems. Industry is encouraged to develop appropriate tools and a common set of interoperable standards and formats e.g. APIs
- Metadata – data controllers should provide as many metadata with the data as possible at the best possible level of granularity which preserves the precise meaning of exchanged information
- Large and complex data sets – it may be appropriate to provide the data subject with a summary, explaining the way the data is structured, to allow the data subject to select subsets to be ported
- Security – the data controllers must guarantee appropriate security and the data controller is responsible for ensuring ported data is delivered to the right destination
Identifying a lead supervisory authority (SA)
- Cross-border processing – appointing a lead SA is only relevant where there is cross-border processing i.e. establishments in more than one Member State or where the processing substantially affects or is likely to substantially affect data subjects in more than one Member State
- “Substantially affects” – this takes the ordinary English meaning. Ultimately, SAs will decide on case by case basis taking a set of factors into account, examples of which are given in the guidance
- Main establishment – where decisions are taken is key
- Main establishment where not place of central administration – Recital 36 provides useful guidance. The key is to identify where effective and real exercise of management activities that determine main decisions about data processing takes place. The data controller identifies this but it can be challenged by the SA concerned
- Borderline cases and complex situations – e.g. where there is cross-border processing activity with the controller established in several Member States but where there is no central administration in the EU and decisions about the processing are taken exclusively outside the EU. The WP notes that the GDPR does not deal with this and suggests that the company designate the establishment which will act as the main establishment. The designated establishment must have the authority to implement decisions about the processing activity and to take liability including having sufficient assets. If no such establishment is designated then it will not be possible to designate a lead authority. Note that forum shopping is not permitted. The relevant SAs (and ultimately the EDPB) may decide which SA is the lead authority objectively assessing relevant evidence. The burden of proof falls on the controllers and processors concerned so effective records would help.
- SA concerned – the appointment of a lead authority should not prevent other SAs having a say in how matters are dealt with. The procedures under the GDPR need to be followed
- Companies not established within the EU – if the company does not have an establishment in the EU, the mere presence of a representative in a Member State does not trigger the one stop shop system. Controllers without any establishment in the EU must deal with local SAs in every Member State they are active in through their local representative.
- Processors – Recital 36 states that in cases involving both controller and processor, the competent lead SA should be the lead SA for the data controller