Live Discussion of Mr. Economides about GDPR at Sigma TV on the 25th of May 2018
An article by Mr. Michalis Economides, CEO | Advocate & Legal Consultant of the International Law Firm Chambersfield Economides Kranos |Magazine Publication Capital Today, June 2018
Personal Data – New Legal Framework – Practical Application
Following four years of debate, the (EU) 2016/679 regulation of the European Parliament and Council of the 27th of April 2016, is enforced.
The regulation refers to the protection of individuals, concerning the process of their personal data, as well as, the free exchange of those data (General Regulation for Data Protection).
The regulation of the 27th of April 2016 (having a two-year harmonization period) entered into force on the 25th of May 2018.
The aforementioned regulation replaced the Directive 95/46 / EC, the provisions of which were transferred to the 2001 Personal Data Processing (Protection of Individuals) Law (Law 138 (I) / 2001).
The regulation, unlike the Directive, ensures a high level of harmonization and it is directly applicable to all European Member States.
The protection of natural persons, in regard to the processing of their personal data, it is a fundamental right. The Article 8 (1) of the Charter of Fundamental Rights of the European Union and Article 16 (1) of the treaty for the operation of the European Union (TFEU), specify that every person has the right to protect its personal data.
The worldwide integration and rapid development of the data processing, as well as, the functioning of a global market, have resulted in an unparalleled increase flow of data collection, processing and cross-border exchange, from both private companies and public authorities.
Target
The Regulation aims the uniformity and decisive protection of the privacy, of the citizens of the European Union. This requirement ascended, due to the intense daily increasing trend of personal data exchange, worldwide, which in many cases was subject to violations of the personal data of individuals.
Interpretation of Definitions
According to the provisions of the Regulation, “personal data” is defined as the data and any kind of information that directly or indirectly identify an individual.
This information may relate to his / her private, professional and / or personal life.
The processing of personal data, in accordance with the Article 4 (2) of the Regulation, indicates that any act or series of operations carried out with or without the use of automated means, such as: collecting, recording, organizing, structuring, storing, adapting or modifying, recovering, searching of information, using, disclosing by transmission, distributing or any other form of supplying, associating or combining, restraining, removing or destructing of data.
“Controller” is the natural or legal person, public authority, service or any other body that defines the purposes and manners of processing personal data.
“Processor” is the natural or legal person, public authority, service or any other entity, which process the personal data on behalf of the controller.
The Basic Principles of the Regulation
The basic principle of the Regulation is the harmonization and introduction of a set of data protection standards, which will apply uniformly, throughout the European Union.
Undoubtedly, one of the biggest changes in the regulatory field of personal data protection derives mainly, from the extended jurisdiction of the Regulation, in all the European member states. The Regulation applies to all companies and organizations, which process personal data of people residing in the European Union, irrespective of the company’s registered office location.
Additionally, the Regulation refers to all private and public enterprises, as well as, government authorities that collect, process and generally manage personal data of customers, employees, associates or other natural persons, which are European citizens.
In summary, the new Regulation applies to all businesses that process personal data of European citizens, regardless of their location (inside and outside the European Union).
Moreover, an equally important characteristic of the Regulation is to introduce and strengthen the rights of individuals, whose personal data are being processed.
Additionally, it is notable to mention that the new Regulation introduced new obligations to businesses on the way they process personal data.
In fact, the Regulation is significantly increases the obligations of all entities that manage personal data of European citizens.
Severe amount penalties, according to Article 83 of the Regulation will be imposed to offenders, with fines ranging from €10,000,000 to €20,000,000 or from 2% to 4% of the total annual global turnover of the previous business year of a business (applies to whichever is the higher). The fines will be applied according to the nature of the violation. Hence, the heavier fines will be exercised for breaches concerning the basic principles of the Regulation, related to data processing, data transfer in a third country without the consent of the individual and to the non-compliance with an order or limitation of the data processing, imposed by the supervisory authority.
Decisions, which are issued by the supervising authorities, in the context of the fine exercise power, will be subject to appeal before the Administrative Court on the basis of Article 146 of the Constitution.
Furthermore, another important fact of the Regulation is to strengthen the existing principles governing the processing of personal data, and according to Article 5 of the Regulation, they state that personal data must:
Rights of individuals
The Regulation based on the structure of the existing legislative framework, strengthens the rights deriving from the 1995 Directive and introduces new rights and obligations.
Indicative is the explicit legislative fortification of the “right to be forgotten”, which is the right that allows the individual to maintain control of his / her personal information, mainly in the cyberspace.
The imperative rights of individuals, whose personal data are being processed, are:
Business Obligations
The Regulation significantly increases the obligations of businesses towards the protection of the personal data of their customers and employees, without though constraining the collection and processing of data for businesses.
Instead, the process of data will be based on a sequence of restriction series and new obligations for companies concerning:
In order for a business to be able to demonstrate its compliance with the provisions of the Regulation, it is required to implement procedures that follow the principles governing the processing of personal data.
In particular, the Regulation imposes a series of new obligations on businesses including:
The obligation for appointing a Data Protection Officer is formed when:
A “large scale”, according to the Regulation, is when there is a process of a significant amount of data, or for a long duration of time, or when a large number of people are affected, or when the processing covers a large geographical area. Hospitals, banks, educational institutions, insurance companies, telecommunication services, internet search engine platforms etc, have large-scale monitoring.
Prerequisites for a lawful processing of personal data:
According to the Article 6 of the Regulation, in order for a process of personal data to be lawful, at least one of the following conditions should be applied:
The processing of specific categories of personal data, it is only permitted when there is an explicit consent for the individual, performed within the labor law, social security and protection, or, when there is a vigorous interest.
Consent in accordance to Articles 4 and 7 of the Regulation, is the most common legal framework of personal data processing. The Regulation becomes rigorous under the conditions, which consent is considered as valid. “Valid consent” means any indication of will; free, specific, explicit, and informed of the procedures of personal data, relating to the individual. Silence, pre-filled boxes, or inactivity are not considered as consent. Consent should cover all the processing activities carried out for the same purpose or for the same purposes. When the process includes multiple purposes, consent should be given for all these purposes, separately.
As a result, some methods that were considered as legitimate or gray areas (i.e a predefined box accepting the Privacy Policy) are not currently, according to the Regulation, sufficient to justify the legitimacy of data processing.
As far as concern the children under the age of 16, who fall into the category of sensitive persons, and, therefore are not in the position to cope with consciousness the data processing, their consent in order to be considered valid, should be given by a person who has the parental responsibility of the child.
The harmonization and modification of each organizational structure, which maintains a database has already begun. In summary, the steps for the harmonization of the companies with the new Regulation are as follows:
The major sanctions and the innovations of the existing legal framework of the protection of personal data introduced by the Regulation, specify clearly the objective of the new regulation, which is none other than the creation of a single, stricter and adequate framework for the protection of personal data, which all Member States should apply.
The collection and processing of citizens’ personal data will now be based, on a balanced system governed by the trust between individuals and organizations, which the collection processing data activities will be under the notion of full transparency.
Citizens will have the opportunity to know, which organizations hold and manage their personal data, having the right to submit complain to the supervisory authority, when a violation and / or an incorrect processing of their personal data has been occurred.