GDPR Myth Busting – We need to appoint a Data Protection Officer

Not necessarily.

All organisations must designate someone to take responsibility for data protection compliance.

Some are required to appoint a Data Protection Officer.

Future thinking organisations are choosing to appoint a DPO, to help regulate their privacy and build a stronger foundation of trust with their customers.

The GDPR allows for organisations to appoint an external DPO based on a service contract.

If you do appoint a DPO you must notify the ICO.

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GDPR Myth Busting – There is no requirement to register with the ICO

You now need to pay the data protection fee.

The old regime of registration has been replaced with the requirement to pay the ICO a data protection fee unless you are exempt.

On payment, your business is added to the public register.

There are three different levels of fee, based on the risks associated with the personal data processing and depends on a variety of factors including how many members of staff you have and your annual turnover.

The ICO has started prosecuting businesses that are not paying the data protection fee.

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GDPR Myth Busting – We have to have a Data Protection Policy

No, you don’t. A data protection policy will help you address data protection in a consistent manner and demonstrate accountability, but it is not a legal requirement.

However, individuals have a right to know that you are collecting their data, why you are processing it and who you are sharing it with.

You should publish this privacy information on your website and within any forms or letters, you send to individuals.

What information you supply depends on whether you obtained the personal data directly from the individual or a third party.

It is not good practice to copy other companies privacy notices as it will not reflect your processing activities and this type of superficial compliance is very easy for a regulator to spot and challenge.

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GDPR Myth Busting – So we just won’t tell them

Compulsory breach notification is in place.

A personal data breach is a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data.

You must keep a record of all personal data breaches.

You have to notify the ICO of a breach unless it is unlikely to result in a risk to the rights and freedoms of individuals. This has to be done without undue delay, but not later than 72 hours after becoming aware of it.

Where a breach is likely to result in a high risk to the rights and freedoms of individuals, you must also notify those concerned directly and without undue delay.

If you are a data processor you are under an obligation to notify the data controller, but not the ICO.

So for example not using the bcc function on an email to a number of recipients is a potential data breach. This should be recorded but will not need to be reported to the ICO unless the email contains information which has a privacy risk such as home address details. If the email contained bank account details there is a potential for fraud and this would need to be reported to the ICO and the individuals concerned.

PS if you get an email that should have been bcc’ed do not hit ‘reply all’ to tell the sender of the issue as you are committing a data breach yourself.

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GDPR Myth Busting – The ICO will impose massive fines for data breaches

The Information Commissioner can issue a monetary penalty for failing to comply, there are two tiers:

1. The highest €20 million Euros or 4% of the total annual worldwide turnover, whichever is higher. This applies to any failure to comply with the data protection principles, any rights an individual may have, or in relation to transfers of personal data overseas.

2. If there is an infringement of other provisions, the standard maximum amount will apply, which is €10 million Euros or 2% of the total annual worldwide turnover, whichever is higher.

You are likely to incur the wrath of the ICO if you persistently, deliberately or negligently flout the regulations or misuse data. The ICO’s have stated that this will particularly apply to large companies in the technology sector. However many small firms fear the ICO will be heavy-handed in dealing with non-compliance. The Information Commissioner herself has said that small businesses which did not make extensive use of customer data would not come under close scrutiny.

Accountability is one of the key data protection principles – this means that you must be able to demonstrate your compliance. For most small businesses this means you should identify your Information Assets and record what Personal Data is held, where it came from, who you share it with and what you do with it in an Asset Register.

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GDPR Myth Busting – If we receive a deletion request we have to delete everything about them

The Right to be forgotten (or the right to erasure) is not an absolute right and does not apply where there is a lawful reason for the continued processing.

HR records often present issues. For tax purposes, you need to keep records of people who have worked for you for 7 years, including a name, start date and termination date. But you are unlikely to have a lawful reason to keep other information such as emergency contact details, passport scans and bank details.

You should set out retention periods and securely delete unnecessary data, in hard copy and electronic formats including backups, when it is no longer required.

This also makes it easier to respond to a data subject access request, as if you don’t have the information you can’t supply it.

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GDPR Myth Busting – Well, consent is required for marketing! 

Not necessarily. The ICO is clear that marketing of your own products and services can be a legitimate interest. If you can show that the way you use people’s data is

  1. proportionate,
  2. has a minimal privacy impact, and
  3. people would not be surprised or likely to object to what you are doing, then consent is not required.

However, with respect to direct marketing, the Privacy and Electronic Communications Regulations take precedent.

Consent is not always required for direct marketing in business to business communications, but you have to be a little careful as sole traders and some partnerships are treated as individuals.

For direct marketing to individuals, consent is usually required, although marketing related to products and services similar to those they have already bought is OK.

If you are required to have consent under the Privacy and Electronic Communications Regs then this is the Legal Basis of Processing to use for GDPR.

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GDPR Myth Busting – We need the data subjects permission to process their data

No, you don’t – you must have one of six lawful reasons for processing data set out in the regulations, but not necessarily Consent. This includes:

  • where you are carrying out a Contract with the data subject or are taking steps to enter into a contract, a law firm carrying out conveyancing, or an insurance company getting information to prepare a quote.
  • where a law specifically requires the processing to be done, such as money laundering checks or employee right to work checks.
  • for your own or a third parties, legitimate interests. This is best where you use people’s data in ways they would reasonably expect and has little impact on privacy. For example, it is a legitimate interest for an internet shopping site to have contact details and a delivery address for shoppers.

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GDPR Myth Busting – Using professionals to deliver marketing services takes away the worry

If you pay a third party to do your marketing, you are both responsible for complying with GDPR and the Privacy & Electronic Communication Regulations.

If the ICO were to take enforcement action, they would usually take it against the ‘instigator‘. If a specialist subcontractor deliberately ignored the rules they might also consider taking action against them.

Whatever the situation it is a legal requirement to have a written GDPR compliant agreement in place, with suppliers that have access to your personal data. It needs to set out your contractor’s responsibilities and if possible, guarantees of compliance.

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