European Union General Data Protection Regulation (GDPR) – 2018 what should GCC countries consider?

May 30th, 2017 by Stephen Jones Leave a reply »

The UAE Ministry of Economy is raising awareness among private sector companies of the need to be ready for new European data protection rules, which comes into force one year from now.

The European Union General Data Protection Regulation (GDPR) is set to become law by May 2018. The new rules govern all companies in Europe, as well as all companies trading with European companies and individuals.

The GDPR was drafted to “harmonise the protection of fundamental rights and freedoms of natural persons in respect of processing activities and to ensure the free flow of personal data between Member States

The law includes strong penalties for either misuse of data, or failure to protect the personal data of customers, with fines of up to 4% of annual turnover, or 20m euros ($22m).

HE Juma Mohammed Al Kait, Assistant Undersecretary for Foreign Trade at the Ministry of Economy, noted that the regulation issued by the EU aims to protect the data of every individual in the EU.

This not only impacts companies operating in European countries, but includes all institutions and companies that conduct business, trade and investment activities within EU countries, including the UAE business sector linked with European trade relations.

Due to this, the Ministry is working on deepening its knowledge about the new legislation, its provisions and requirements, and aims to reconcile its operational procedures with European authorities, in adherence with the framework of the GDPR, before May 2018.

Al Kait emphasized the EU is one of the UAE’s most important trade partners. Trade between the two sides generated $65.8 billion in 2016 alone. The UAE has become one of the top 10 destinations for EU exports, and is home to over 41,000 European companies, in addition to over 121,000 EU citizens.

Penalties will also apply to information controllers and processors, including cloud software companies.

The new legislation also outlines terms of approval for the use of data, to prevent companies from using legally illegitimate terms, and gives both parties the ability to easily withdraw if desired.

The compliance world will change dramatically for a number of GCC organizations on 25 May 2018. In just over one year’s time GCC organizations that:
1.have a branch, subsidiary or single representative in the European Union (“EU”);
2.do not have a physical presence in the EU, but offer goods or services to data subjects in the EU; or
3.neither have a physical presence in the EU nor offer goods or services to people in the EU, but monitor the online behavior of data subjects in the EU, will have to ensure that they are complying with the European Union General Data Protection Regulation (“GDPR”).

Who is likely to be affected?

Based on the test set out in the GDPR, the new regulations will likely apply to a significant number of entities in this region.
Obvious examples include:
– major airlines that fly to and from the EU,
- hotel and tourism operators who promote travel to the region to EU data subjects,
- regional banks and other financial service companies that have branches in the financial centres in the EU and online.

Less obvious examples include:
- e-commerce companies that are able to accept payments in euros and deliver to the EU
- mobile apps that can be downloaded by users in the EU and which have access to a user’s contacts, photos or location data.

All of these businesses may need to comply with the GDPR and to mitigate the risk and cost of failure to do so.
If your organization is affected it has three main options:
1. wait and see i.e. do nothing (not advisable);
2.consider what it needs to do to ensure that it does not fall within the scope of the GDPR;
3. take immediate steps to prepare to comply with the GDPR .

For option (2), if your organization does not have an establishment in the EU and does not need to target or monitor EU data subjects then you ight consider making it very clear that your website or app is not for use by EU users (e.g. including geo-blocking EU data subjects).

for option (3), if you have not started the process of ensuring compliance by now, then there is a lot to do.

1.monitor business to consumer business practices, including:
- conducting a data protection audit,
- examining the legal basis on which it processes personal data and updates its privacy policies;
2.monitor internal business practices, including:
- review and update of agreements with data processors,
- implement processes for adoption of pseudoanonymization and privacy by design
- considering the legal basis on which it transfers personal data between jurisdictions;
3.establish compliant accountability processes, including”
- processes for record keeping,
- appointment of a data protection officer or EU representative and dealing with data subjects;
4.invest in infrastructure, including:
- how to determine the severity, and impact on data subjects of a data breach
- to establish robust security processes and procedures for notifying regulatory authorities and data subjects -

The need for compliance, especially for longer-term projects such as records of processing and compliant contracting, must be addressed as soon as is practicable.

Businesses that either operate, target customers or monitor individuals in the EU should :
• Audit: to identify key remediation areas.
• Record of Processing: This mandatory record will require significant internal resources, but will also help to plan and implement GDPR processes. .
• Consider Contract Renegotiations: The GDPR requires that contracts with data controllers include additional obligations. As companies come to renegotiate contracts, ensure that adequate data protection clauses are added.
• Review and update, where necessary, employee notices to be GDPR compliant. If you currently conduct criminal records checks, then review national laws where you operate to ensure you can continue to do so . There is an emphasis on transparency in the GDPR. Notices must be clear, concise and informative. Employees must be adequately informed of all data processing activities and data transfers and the information set out in Articles 13 to 14 must be provided. Criminal records can no longer be processed unless authorized by member state law.

Consider whether your organization is processing any sensitive personal data and ensure the requirements for
processing such data are satisfied While the grounds for processing are broadly the same as those set out
in the current Data Privacy Directive, the GDPR imposes new requirements to gain valid consent. Consent can be withdrawn at any time and systems must be able to handle withdrawal request.

• Review and update, where necessary, customer notices to be GDPR compliant
• Consider whether your notices have to accommodate “child-friendly requirements”. he GDPR requires parental consent for the processing of data related to information society services offered to a “child” (ranging
from 13 to 16 years old depending on the member state.
• Data privacy rights. The current rights to request access to data or require it to be rectified or deleted have been expanded to include a much broader right to require deletion (“the right to be forgotten”), a right not just to access your data but have it provided to you in a machine readable format (“data portability”). Versions of the existing right to object to any processing undertaken on the basis of legitimate interests or for direct marketing and the right not to be subject to decision based on automated processing are also included and expressly refer a right to object to profiling.
These must be clearly communicated in the notices given to data subjects, e.g. privacy policy
• Privacy by design. Ensure processes are in place to embed privacy by design into projects (e.g. technical and organizational measures are in place to ensure data minimization, purpose limitation and security)

Consider what data you hold in emails, in CRM systems, Social media.
What should be your data access use and retention policies?

Personally I think it will be great if this is a way to prosecute the perpetrators of all the spam nd phishing emails I get or at least to remove data form their lists!

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