Things to think about before Brexit

If you haven’t already thought about it there are some things that you will need to do to prepare your business for Brexit.

Especially if you:

  • import or export goods or services to the EU,
  • exchange personal data (including customers’ addresses, staff working hours or information you give to a delivery company) with an organisation in Europe (this includes using websites or services hosted in Europe & processing personal data from Europe), or
  • you use or rely on intellectual property (IP) protection (this includes copyright, trademarks and patents).

There is a useful step by step guide at https://www.gov.uk/get-ready-brexit-check

Copyright

To put the record straight copyright is an automatic right. Therefore when you produce a creative work you own the copyright in it There are a few exceptions so for example if you have a contract of employment, the contract will generally state that when you are employed the employer owns the copyright of material you produce at work

Copying or adapting someone else’s work is a ‘restricted act’. An adaptation is a ‘derived work’. If someone adapts your work, you still own it. There is no acceptable percentage of changes.

You have every right to object if they publish such a work when you have not given them your permission to do so. You are also entitled to reclaim any money they make from selling your work. They could seek your permission to use the work as the rights owner, however, you will be able to charge a fee and/or royalties for this.

Read more about copyright. If you would like more detailed information about copyright please ask for our Copyright White Paper.

Do we have to have a Data Protection Policy?

There is no specific legal requirement to have a data protection policy under the Data Protection Act 2018 or the General Data Protection Regulations (GDPR).  However, there are some areas where such a document could prove useful.

Documentation

The GDPR contains explicit provisions about documenting your processing activities:

  • You must maintain records on several things such as processing purposes, data sharing and retention.
  • Documentation can help you comply with other aspects of the GDPR and improve your data governance.
  • For small and medium-sized organisations, documentation requirements are limited to certain types of processing activities.

Transparency

In addition, individuals have the right to be informed about the collection and use of their personal data. This is a key transparency requirement under GDPR. You must provide individuals with information including:

  • your purposes for processing their personal data,
  • your retention periods for that personal data, and
  • who it will be shared with

This is called ‘privacy information’. (Some businesses give this information in a “Privacy Policy” found on many websites.)

You must provide privacy information to individuals at the time you collect their personal data from them.

If you obtain personal data from other sources, you must provide individuals with privacy information within a reasonable period of obtaining the data and no later than one month.

Using Data Processors

As well as imposing a legal obligation on data controllers (the owner of the data), to formalise their working relationship with data processors in a written contract, they are also responsible for assessing that the processor is competent to process personal data in line with the GDPR’s requirements. Part of this process is to ask to see relevant documentation, such as their privacy policy, record management policy and information security policy.

Network referrals

When seeking referrals off people in my networking group, what information is safe to gather? So, let’s say, for example, I ask Bob for referrals of our ideal client. Bob knows somebody who may be interested in our service – so passes us their contact details. Is this safe?

Samuel Poole Marketing Communications Manager Syn-Star Complete I.T. Solutions

Great question, actually in Data Protection terms it is not safe to do this unless certain things are in place.

Essentially when dealing with personal information such as contact details the person who decides what to do with the information is a data controller, in this case, Bob.

The data controller has to “process” personal data fairly (processing includes passing it to a third party i.e. you). They also have to have one of six lawful reasons to be able to process the data. The most appropriate one of which in these circumstances is the consent of the data subject. This has to be GDPR compliant consent i.e. given freely, not under duress and in full knowledge of what they are consenting to.

The data controller also has to give “privacy information” explaining how the subjects data will be used. There are specific things that have to be included in this information which often takes the form of a notice, but can also be given verbally depending on the circumstances.

It is incumbent on you to check that the necessary consent is in place for the use you wish to make of the data before acting on it.

Of course, once the information comes into your hands for marketing purposes you become a data controller, in addition, you will need to comply with the Privacy and Electronic Communications Regs in relation to electronic marketing messages (phone, fax, email or text).

How long does personal data have to be stored under the data protection law?

The short answer is no longer than necessary.

Personal data will need to be retained for longer in some cases than in others. How long you retain different categories of personal data should be based on individual business needs. A judgement must be made about:

  • the current and future value of the information;
  • the costs, risks and liabilities associated with retaining the information; and
  • the ease or difficulty of making sure it remains accurate and up to date.

There are various legal requirements and professional guidelines about keeping certain kinds of records – such as information needed for income tax and audit purposes, or information on aspects of health and safety. If an organisation keeps personal data to comply with a requirement like this, it will not be considered to have kept the information for longer than necessary.

The CIPD have a great resource regarding HR records which can be found here.

Do I need to appoint a Data Protection Officer to comply with the GDPR (General Data Protection Regulations)?

Not necessarily, but you must ensure that your organisation has sufficient staff and skills to discharge your obligations under the GDPR and so you can appoint a data protection officer (DPO) if that helps you meet this criteria.

The GDPR says that they should have professional experience and knowledge of data protection law. This should be proportionate to the type of processing your organisation carries out, taking into consideration the level of protection the personal data requires.

Public authorities (except for courts acting in their judicial capacity) are required to appoint a data protection officer (DPO), as is any organisation carrying out large scale systematic monitoring of individuals (for example, online behaviour tracking); or carrying out large scale processing of special categories of data or data relating to criminal convictions and offences.

The DPO’s minimum tasks are defined in Article 39:

  • To inform and advise the organisation and its employees about their obligations to comply with the GDPR and other data protection laws.
  • To monitor compliance with the GDPR and other data protection laws, including managing internal data protection activities, advise on data protection impact assessments; train staff and conduct internal audits.
  • To be the first point of contact for supervisory authorities and for individuals whose data is processed (employees, customers etc).

You must ensure that:

  • The DPO reports to the highest management level of your organisation – ie board level.
  • The DPO operates independently and is not dismissed or penalised for performing their task.
  • Adequate resources are provided to enable DPOs to meet their GDPR obligations.


The role of DPO can be allocated to an existing employee. As long as the professional duties of the employee are compatible with the duties of the DPO and do not lead to a conflict of interests. You can also contract out the role of DPO externally.

How can Crimson Crab Help?

 

 

I have to retain accounts for HMRC purposes, especially income tax, for any business / sole trader that has ceased trading within previous years, would they have to comply with data protection in either current or future forms?

It is important to remember that we are only talking about third party personal data under the data protection rules.

If you are holding this as part of your responsibilities then you will need to comply with the Data Protection Act until May 2018 and the GDPR thereafter.

You need to think carefully about the storage and disposal of personal data. 

How can Crimson Crab help…

If I cease trading before the new data protection laws come into play, do I have to comply, or does it only apply to active businesses / sole traders?

The General Data Protection Regulations (GDPR) came into force in May 2016.

There is a two year lead in period to enable businesses to become familiar with the new regime and so the critical date is:

25th May 2018

The law applies to anyone who processes personal data (which includes storage and disposal) in whatever capacity.

How can Crimson Crab help…