Frequently Asked Questions
GDPR & Data Protection
What is the GDPR ?
The General Data Protection Regulation (GDPR) is a new landmark EU privacy regulation that appies since 25 May 2018. Given that it’s a Regulation, it’s directly applicable in all of the EU Member States without the need to implement it in national legislation.
The GDPR is being called the world’s strictest data privacy law. It aims to expand and unify data protection rights of individuals in the EU and it has unprecedented extraterritorial reach.
What is personal data ?
Personal data under the GDPR has a very broad interpretation and includes any information that relates to an identified or identifiable natural person: name, pictures, addresses, phone numbers, e-mail addresses, IP addresses (even dynamic), identification numbers, location data, age, origins, pseudo, etc.
What is sensitive data ?
Sensitive data is personal data that reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, or genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or a natural person’s sex life or sexual orientation.
What are the sanctions for non-compliance with the GDPR ?
Infringements to the GDPR (even for non-EU companies) may lead to fines of up to the greater of €20 million or 4% of worldwide turnover, without prejudice to individual and collective claims for damages that can be brought before the courts. The data protection authorities also have the power to impose temporary or indefinite bans on processing and to suspend data flows to recipients in third countries.
Pursuing to GDPR Art. 83 (4) (a), the sanctions for not appointing an EU Representative can go up to €10 million or 2% of total worldwide annual turnover, whichever is higher.
How does the GDPR representative in the EU assist non-EU companies ?
The main task of the GDPR representative in the EU is to act as a point of contact for the data protection authorities and individuals in the EU whose personal data is being processed by the non-EU companies. The representative acts on behalf of the non-EU companies, performing its tasks according to the mandate received from them, including cooperating with the EU data protection authorities with regard to any action taken to ensure compliance with the GDPR.
The GDPR representative in the EU also has to maintain records of the processing activities of the non-EU companies.
Where does the EU representative have to be located ?
The GDPR representative must be located in a (single) country in the EU where the individuals whose data are being processed are located. If your company generally targets the entire EU, then it can choose the country where it wants to base its representative. As Brussels is the capital of the EU, it is a preferred location for non-EU companies to designate their GDPR representatives.
How do I designate a GDPR representative in the EU?
The GDPR representative in the EU must be designated in writing. A proper written contract must therefore be in place to provide a clear mandate and specific instructions.
Does designating a GDPR representative in the EU release the non-EU companies from liability and responsability?
NO. The GDPR clearly states that the designation of a GDPR representative in the EU does not affect the responsibility and liability of the non-EU companies that fall within the scope of the GDPR. The designation is without prejudice to legal actions which could be initiated against the non-EU companies.
Are there any exceptions to the application of art. 27 of the GDPR to non-EU companies ?
(i) the company only occasionally processes the personal data of persons in the EU
(ii) the processing does not include the processing on a large scale of special categories of personal data or the processing of personal data relating to criminal convictions and offenses
(iii) the nature, context, scope and purpose of the processing is unlikely to result in a risk to the rights and freedoms.
Can I appoint EDPO as EU Representative?
Yes! EDPO is a privately-held Belgian limited liability company located in Brussels, the European capital, and we have representation offices in London, Paris, Berlin, Mardrid and Dublin. Our only activity is to act as (GDPR Article 27) EU representative for non-EU companies that fall within the scope of the GDPR, so we are focused on providing top-notch representation services.
How much does it cost to designate EDPO as your company’s GDPR EU representative?
Our GDPR representative fees are based on the size of your company (in terms of number of employees), the type of data (regular data and/or sensitive data) that your company processes, whether or not your company’s processing operations require regular and systematic monitoring of individuals in the EU and whether your company processes personal data on a large scale. All packages can be tailored to your company’s specific needs.
The scope of GDPR Article 27
What does it mean to “occasionally process” the personal data of persons in the EU ?
The terms “occasionally process” are not defined in the GDPR but the most recent guidelines on the GDPR state that a processing activity can only be considered as “occasional” if it is not carried out regularly, and occurs outside the regular course of business or activity of the controller or processor. Examples of “regular” processing include payroll, accounting, customer data management, e-mail loggings, school grades, etc.
What is considered to be processing “on a large scale"?
- The number of individuals concerned – either as a specific number or as a proportion of the relevant population
- The volume of data and/or the range of different data items being processed
- The duration, or permanence, of the data processing activity
- The geographical extent of the processing activity
- processing of patient data in the regular course of business by a hospital
- processing of travel data of individuals using a city’s public transport system (e.g. tracking via travel cards)
- processing of real time geo-location data of customers of an international fast food chain for statistical purposes by a processor specialised in providing these services
- processing of customer data in the regular course of business by an insurance company or a bank
- processing of personal data for behavioural advertising by a search engine
- processing of data (content, traffic, location) by telephone or internet service providers
- processing of patient data by an individual doctor
- processing of personal data relating to criminal convictions and offences by an individual lawyer
How can a non-EU company assess whether processing is “unlikely to result in a risk to the rights and freedoms of individuals” ?
The GDPR does not define the notion of “risk to the rights and freedoms of individuals” but the recitals include examples of the types of risks which should be considered:
- physical, material or non-material damage, in particular where the processing may give rise to discrimination, identity theft or fraud, financial loss, damage to the reputation, loss of confidentiality of personal data protected by professional secrecy, unauthorised reversal of pseudonymisation, or any other significant economic or social disadvantage
- where data subjects might be deprived of their rights and freedoms or prevented from exercising control over their personal data
- where personal data are processed which reveal racial or ethnic origin, political opinions, religion or philosophical beliefs, trade union membership, and the processing of genetic data, data concerning health or data concerning sex life or criminal convictions and offences or related security measures
- where personal aspects are evaluated, in particular analysing or predicting aspects concerning performance at work, economic situation, health, personal preferences or interests, reliability or behaviour, location or movements, in order to create or use personal profiles
- where personal data of vulnerable natural persons, in particular of children, are processed
- where processing involves a large amount of personal data and affects a large number of data subjects.
The role of the EU Representative
What are data subject access requests (“DSARs”) and how does the EU representative handle them?
DSARs are rights that are given by the GDPR to data subjects to request access to all personal information that an organization holds on them.
As your EU representative, EDPO handles an unlimited number of DSARs across the entire EU/EEA. We also perform identity checks (if instructed to do so), forward the requests to our clients with free English translation if needed, answer our clients’ questions as to best practices on how to respond, and reply to the data subjects on their belhaf. We aren’t just a mailbox or message forwarding service.
What is the delay to respond to information requests ?
Requests for information from individuals in the EU must be replied to within one month. Extensions of an additional 2 months are possible depending on the complexity and the number of requests.
How must information be communicated to individuals ?
Information must be provided in a concise, transparent, intelligible and easily accessible form. Particular attention must be given to information which is addressed to children. The information must be provided in writing or by electronic means and it can also be provided orally if the identity of the person making the request is proven.
What happens if I experience a data breach?
A data breach isn’t fun, but it can sometimes happen. Given that every data protection authority (DPA) has different requirements for data breach notifications (including filing in the country’s official language), the entire process can be very challenging – especially given the tight 72-hour deadline to notify a data breach to the DPAs. EDPO uses a unique data breach notification platform that consolidates all of the questions of all of the data breach notification forms in the entire EU/EA in English and then translates the answers back into the original language of the respective national EU/EEA countries. We can therefore give you a huge head start in your data breach notification filings by reducing the time and resources – and stress! – required to complete your data breach notifications.
In addition, our contract with you will not automatically terminate in the event that you experience a data breach. We support you all the time and all the way.
What’s a record of processing activities and what does the EU representative do with it?
Your EU Representative has a legal obligation to hold a copy of your Article 30 record of processing activities: i.e. all relevant and up-to-date information regarding the EU personal data that you process.
Your GDPR Article 30 record of processing activities is kept by EDPO on a highly secure platform that is hosted in a data center that has the highest security levels Europe, guaranteed via international standards and certifications. EDPO can also provide you with referrals of templates and/or experts who can help you set one up.
For more information, watch our video on how to set up a Record of processing activities!
What will happen to non-EU companies with Brexit?
Do non-EU companies need an EU representative if they only process data from the UK?
Non-EU companies that process personal data from the UK will need a UK representative. If they process both from the UK and the EU, they will need these two representatives, one in the EU and one in the UK.
Will European companies need a UK representative if they process data from the UK?
At the end of the Brexit transition period, European companies will have to appoint a UK Representative if they process personal data of individuals who are in the UK.
EDPO’s London office provides UK Representation services to allow EU companies to stay compliant with both the GDPR and the UK data protection regulations.