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63-534: The General Data Protection Regulation (Regulation (EU) 2016/679), abbreviated GDPR , or French RGPD (for Règlement général sur la protection des données ) is a European Union regulation on information privacy in the European Union (EU) and the European Economic Area (EEA). The GDPR is an important component of EU privacy law and human rights law , in particular Article 8(1) of

126-469: A data protection officer (DPO), who is responsible for managing compliance with the GDPR. Data controllers must report data breaches to national supervisory authorities within 72 hours if they have an adverse effect on user privacy. In some cases, violators of the GDPR may be fined up to €20 million or up to 4% of the annual worldwide turnover of the preceding financial year in case of an enterprise, whichever

189-535: A portable copy of the stored data , their right to erasure of their data under certain circumstances , their right to contest any automated decision-making that was made on a solely algorithmic basis, and their right to file complaints with a Data Protection Authority . As such, the data subject must also be provided with contact details for the data controller and their designated data protection officer, where applicable. Data protection impact assessments ( Article 35 ) have to be conducted when specific risks occur to

252-474: A DPO, although there is overlap in responsibilities that suggest that this role can also be held by the designated DPO. Article 42 and 43 of the GDPR set the legal basis for formal GDPR certifications. They set the basis for two categories of certifications: According to Art. 42 GDPR, the purpose of this certification is to demonstrate “compliance with the GDPR of processing operations by controllers and processors”. There are over 70 references to certification in

315-509: A business has multiple establishments in the EU, it must have a single SA as its "lead authority", based on the location of its "main establishment" where the main processing activities take place. The lead authority thus acts as a " one-stop shop " to supervise all the processing activities of that business throughout the EU. A European Data Protection Board (EDPB) co-ordinates the SAs. EDPB thus replaces

378-496: A case (f) if the legitimate interests of the controller are overridden by the interests or fundamental rights and freedoms of the data subject, which require protection of personal data (see also Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González ). Article 21 of the GDPR allows an individual to object to processing personal information for marketing or non-service related purposes. This means

441-465: A current member of staff of a controller or processor, or the role can be outsourced to an external person or agency through a service contract. In any case, the processing body must make sure that there is no conflict of interest in other roles or interests that a DPO may hold. The contact details for the DPO must be published by the processing organisation (for example, in a privacy notice) and registered with

504-477: A large scale, or if processing on a large scale of special categories of data and personal data relating to criminal convictions and offences ( Articles 9 and Article 10 ) a data protection officer (DPO)—a person with expert knowledge of data protection law and practices—must be designated to assist the controller or processor in monitoring their internal compliance with the Regulation. A designated DPO can be

567-407: A living data inventory of all data collected and stored on behalf of the organization. More details on the function and the role of data protection officer were given on 13 December 2016 (revised 5 April 2017) in a guideline document. Organisations based outside the EU must also appoint an EU-based person as a representative and point of contact for their GDPR obligations. This is a distinct role from

630-615: A model for many other laws around the world, including in Brazil, Japan, Singapore, South Africa, South Korea, Sri Lanka, and Thailand. After leaving the European Union the United Kingdom enacted its "UK GDPR", identical to the GDPR. The California Consumer Privacy Act (CCPA), adopted on 28 June 2018, has many similarities with the GDPR. The GDPR 2016 has eleven chapters, concerning general provisions, principles, rights of

693-508: A person for a "purely personal or household activity and thus with no connection to a professional or commercial activity." (Recital 18). According to the European Commission , "Personal data is information that relates to an identified or identifiable individual. If you cannot directly identify an individual from that information, then you need to consider whether the individual is still identifiable. You should take into account

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756-400: A regulation comes into force, it overrides all national laws dealing with the same subject matter and subsequent national legislation must be consistent with and made in the light of the regulation. While member states are prohibited from obscuring the direct effect of regulations, it is common practice to pass legislation dealing with consequential matters arising from the coming into force of

819-740: A regulation. Although a regulation in principle has a direct effect, the Belgian Constitutional Court has ruled that the international institutions, such as the EU, may not derogate from the national identity as set out in the political and constitutional basic structures of the country, or the core values of the protection of the Constitution. Mutual legal assistance treaty Modern states have developed mechanisms for requesting and obtaining evidence for criminal investigations and prosecutions. When evidence or other forms of legal assistance, such as witness statements or

882-404: A specific data subject without the use of additional information (as an alternative to the other option of complete data anonymisation ). An example is encryption , which renders the original data unintelligible in a process that cannot be reversed without access to the correct decryption key . The GDPR requires for the additional information (such as the decryption key) to be kept separately from

945-423: A specific, freely given, plainly worded, and unambiguous affirmation given by the data subject; an online form which has consent options structured as an opt-out selected by default is a violation of the GDPR, as the consent is not unambiguously affirmed by the user. In addition, multiple types of processing may not be "bundled" together into a single affirmation prompt, as this is not specific to each use of data, and

1008-409: Is at least one legal basis for doing so. The other principles refer to "purpose limitation", " data minimisation ", "accuracy", "storage limitation", and "integrity and confidentiality". Article 6 states that the lawful purposes are: If informed consent is used as the lawful basis for processing, consent must have been explicit for data collected and each purpose data is used for. Consent must be

1071-404: Is done under one of the six lawful bases specified by the regulation ( consent , contract, public task, vital interest, legitimate interest or legal requirement). When the processing is based on consent the data subject has the right to revoke it at any time. Article 33 states the data controller is under a legal obligation to notify the supervisory authority without undue delay unless the breach

1134-421: Is greater. To be able to demonstrate compliance with the GDPR, the data controller must implement measures that meet the principles of data protection by design and by default. Article 25 requires data protection measures to be designed into the development of business processes for products and services. Such measures include pseudonymising personal data, by the controller, as soon as possible (Recital 78). It

1197-408: Is kept hidden. Tokenisation does not alter the type or length of data, which means it can be processed by legacy systems such as databases that may be sensitive to data length and type. This also requires much fewer computational resources to process and less storage space in databases than traditionally encrypted data. Pseudonymisation is a privacy-enhancing technology and is recommended to reduce

1260-429: Is normally done in national legal systems. Regulations are in some sense equivalent to the legislative acts of the member states, in the sense that what they say is law and they do not need to be mediated into national law by means of implementing measures. As such, regulations constitute one of the most powerful forms of European Union law and a great deal of care is required in their drafting and formulation. When

1323-615: Is not equally punishable in both countries. Some treaties may encourage assistance with legal aid for nationals in other countries. Many countries are able to provide mutual legal assistance to other countries for a broad range of topics through their justice ministries even in the absence of a treaty, through joint investigations between law enforcement agencies in both countries, emergency disclosure requests, letters rogatory , etc. In some developing countries, however, domestic laws can actually create obstacles to effective law enforcement cooperation and mutual legal assistance. For instance,

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1386-533: Is not required if the data controller has implemented appropriate technical and organisational protection measures that render the personal data unintelligible to any person who is not authorised to access it, such as encryption. Article 37 requires appointment of a data protection officer. If processing is carried out by a public authority (except for courts or independent judicial authorities when acting in their judicial capacity), or if processing operations involve regular and systematic monitoring of data subjects on

1449-533: Is provided by Article 20 . A right to be forgotten was replaced by a more limited right of erasure in the version of the GDPR that was adopted by the European Parliament in March 2014. Article 17 provides that the data subject has the right to request erasure of personal data related to them on any one of a number of grounds, including noncompliance with Article 6(1) (lawfulness) that includes

1512-424: Is retained, if data is being transferred to a third-party and/or outside the EU, and any automated decision-making that is made on a solely algorithmic basis. Data subjects must be informed of their privacy rights under the GDPR, including their right to revoke consent to data processing at any time, their right to view their personal data and access an overview of how it is being processed , their right to obtain

1575-460: Is the best way to regulate AI. Article 82 of the GDPR stipulates that any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered. In the judgment Österreichische Post (C-300/21) the Court of Justice of the European Union gave an interpretation of

1638-430: Is the responsibility and the liability of the data controller to implement effective measures and be able to demonstrate the compliance of processing activities even if the processing is carried out by a data processor on behalf of the controller (Recital 74). When data is collected, data subjects must be clearly informed about the extent of data collection, the legal basis for the processing of personal data, how long data

1701-424: Is unlikely to result in a risk to the rights and freedoms of the individuals. There is a maximum of 72 hours after becoming aware of the data breach to make the report. Individuals have to be notified if a high risk of an adverse impact is determined. In addition, the data processor will have to notify the controller without undue delay after becoming aware of a personal data breach. However, the notice to data subjects

1764-553: The Article 29 Data Protection Working Party. There are exceptions for data processed in an employment context or in national security that still might be subject to individual country regulations. Article 5 sets out six principles relating to the lawfulness of processing personal data. The first of these specifies that data must be processed lawfully, fairly and in a transparent manner. Article 6 develops this principle by specifying that personal data may not be processed unless there

1827-573: The Charter of Fundamental Rights of the European Union . It also governs the transfer of personal data outside the EU and EEA. The GDPR's goals are to enhance individuals' control and rights over their personal information and to simplify the regulations for international business . It supersedes the Data Protection Directive 95/46/EC and, among other things, simplifies the terminology. The European Parliament and Council of

1890-783: The Digital Services Act ). The description of regulations can be found in Article 288 of the Treaty on the Functioning of the European Union (formerly Article 249 TEC ). Article 288 To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to

1953-578: The EU or a member state. The data protection reform package also includes a separate Data Protection Directive for the police and criminal justice sector that provides rules on personal data exchanges at State level , Union level, and international levels. A single set of rules applies to all EU member states. Each member state establishes an independent supervisory authority (SA) to hear and investigate complaints, sanction administrative offences, etc. SAs in each member state co-operate with other SAs, providing mutual assistance and organising joint operations. If

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2016-409: The EU or not), or processor (an organisation that processes data on behalf of a data controller like cloud service providers), or the data subject (person) is based in the EU. Under certain circumstances, the regulation also applies to organisations based outside the EU if they collect or process personal data of individuals located inside the EU. The regulation does not apply to the processing of data by

2079-412: The EU; however, industry groups concerned about facing a potential conflict of laws have questioned whether Article 48 could be invoked to seek to prevent a data controller subject to a third country's laws from complying with a legal order from that country's law enforcement, judicial, or national security authorities to disclose to such authorities the personal data of an EU person, regardless of whether

2142-470: The European Union adopted the GDPR on 14 April 2016, to become effective on 25 May 2018. As an EU regulation (instead of a directive ), GDPR is directly applicable with force of law on its own without the need of transposition . However, it also provides flexibility for individual member states to modify (derogate from) some of its provisions. As an example of the Brussels effect , the regulation became

2205-734: The Europrivacy certification criteria were officially recognized by the European Data Protection Board (EDPB) to serve as European Data Protection Seal. Europrivacy was developed by the European research programme and is managed by the European Centre for Certification and Privacy (ECCP) in Luxembourg. Besides the definitions as a criminal offence according to national law following Article 83 GDPR

2268-594: The GDPR, encompassing various obligations such as: The GDPR certification also contributes to reduce the legal and financial risks of applicants, as well as of data controllers using certified data processing services. The adoption of the European Data Protection Seals is under the responsibility of the European Data Protection Board (EDPB) and is recognized across all EU and EEA Member States . In October 2022,

2331-570: The Opinion of the Advocate General in the case Krankenversicherung Nordrhein (C-667/21). Data controllers must clearly disclose any data collection , declare the lawful basis and purpose for data processing, and state how long data is being retained and if it is being shared with any third parties or outside of the EEA. Firms have the obligation to protect data of employees and consumers to

2394-438: The categories of data that are being processed as well as a copy of the actual data; furthermore, the data controller has to inform the data subject on details about the processing, such as the purposes of the processing, with whom the data is shared, and how it acquired the data. A data subject must be able to transfer personal data from one electronic processing system to and into another, without being prevented from doing so by

2457-520: The controller is providing and give them their options for how best to object to the processing of their data. There are instances the controller can refuse a request, in the circumstances that the objection request is "manifestly unfounded" or "excessive", so each case of objection must be looked at individually. Other countries such as Canada are also, following the GDPR, considering legislation to regulate automated decision making under privacy laws, even though there are policy questions as to whether this

2520-679: The controller to make sure that the processing, throughout the whole processing lifecycle, complies with the regulation. Controllers shall also implement mechanisms to ensure that personal data is not processed unless necessary for each specific purpose. This is known as data minimisation. A report by the European Union Agency for Network and Information Security elaborates on what needs to be done to achieve privacy and data protection by default. It specifies that encryption and decryption operations must be carried out locally, not by remote service, because both keys and data must remain in

2583-522: The controller's or the processor's representative, shall make the record available to the supervisory authority on request. Records of controller shall contain all of the following information: Records of processor shall contain all of the following information: Controllers and processors of personal data must put in place appropriate technical and organizational measures to implement the data protection principles. Business processes that handle personal data must be designed and built with consideration of

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2646-417: The data controller must allow an individual the right to stop or prevent controller from processing their personal data. There are some instances where this objection does not apply. For example, if: GDPR is also clear that the data controller must inform individuals of their right to object from the first communication the controller has with them. This should be clear and separate from any other information

2709-479: The data controller to provide information to the "data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child." The right of access ( Article 15 ) is a data subject right. It gives people the right to access their personal data and information about how this personal data is being processed. A data controller must provide, upon request, an overview of

2772-414: The data controller. Data that has been sufficiently anonymised is excluded, but data that has been only de-identified but remains possible to link to the individual in question, such as by providing the relevant identifier, is not. In practice, however, providing such identifiers can be challenging, such as in the case of Apple's Siri , where voice and transcript data is stored with a personal identifier that

2835-436: The data resides in or out of the EU. Article 48 states that any judgement of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may not be recognised or enforceable in any manner unless based on an international agreement, like a mutual legal assistance treaty in force between the requesting third (non-EU) country and

2898-479: The data subject, duties of data controllers or processors, transfers of personal data to third countries, supervisory authorities, cooperation among member states, remedies, liability or penalties for breach of rights, and miscellaneous final provisions. Recital 4 proclaims that ‘processing of personal data should be designed to serve mankind’. The regulation applies if the data controller (an organisation that collects information about living people, whether they are in

2961-604: The degree where only the necessary data is extracted with minimum interference with data privacy from employees, consumers, or third parties. Firms should have internal controls and regulations for various departments such as audit, internal controls, and operations. Data subjects have the right to request a portable copy of the data collected by a controller in a common format, as well as the right to have their data erased under certain circumstances. Public authorities, and businesses whose core activities consist of regular or systematic processing of personal data, are required to employ

3024-420: The designated Central Authority within each state. In contemporary practice, such requests may still be made on the basis of reciprocity but may also be made pursuant to bilateral and multilateral treaties that obligate countries to provide assistance. This assistance may take the form of examining and identifying people, places and things, custodial transfers, and providing assistance with the immobilization of

3087-617: The following sanctions can be imposed: Regulation (European Union) A regulation is a legal act of the European Union which becomes immediately enforceable as law in all member states simultaneously. Regulations can be distinguished from directives which, at least in principle, need to be transposed into national law . Regulations can be adopted by means of a variety of legislative procedures depending on their subject matter. Despite their name, Regulations are primary legislation rather than regulatory delegated legislation ; as such, they are often described as "Acts" (e.g.

3150-441: The individual permissions are not freely given. (Recital 32). Data subjects must be allowed to withdraw this consent at any time, and the process of doing so must not be harder than it was to opt in. A data controller may not refuse service to users who decline consent to processing that is not strictly necessary in order to use the service. Consent for children, defined in the regulation as being less than 16 years old (although with

3213-433: The information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual." The precise definitions of terms such as "personal data", "processing", "data subject", "controller", and "processor" are stated in Article 4 . The regulation does not purport to apply to the processing of personal data for national security activities or law enforcement of

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3276-486: The instruments of criminal activity. With regards to the latter, MLATs between the United States and Caribbean nations do not cover U.S. tax evasion , and are therefore ineffective when applied to Caribbean countries, which usually act as offshore " tax havens ". Assistance may be denied by either country (according to agreement details) for political or security reasons, or if the criminal offence in question

3339-438: The manufacturer restricts access to, or in online behavioural targeting, which relies heavily on device fingerprints that can be challenging to capture, send, and verify. Both data being 'provided' by the data subject and data being 'observed', such as about behaviour, are included. In addition, the data must be provided by the controller in a structured and commonly used standard electronic format. The right to data portability

3402-486: The option for member states to individually make it as low as 13 years old, must be given by the child's parent or custodian, and verifiable. If consent to processing was already provided under the Data Protection Directive, a data controller does not have to re-obtain consent if the processing is documented and obtained in compliance with the GDPR's requirements (Recital 171). Article 12 requires

3465-409: The power of the data owner if any privacy is to be achieved. The report specifies that outsourced data storage on remote clouds is practical and relatively safe if only the data owner, not the cloud service, holds the decryption keys. According to the GDPR, pseudonymisation is a required process for stored data that transforms personal data in such a way that the resulting data cannot be attributed to

3528-435: The principles and provide safeguards to protect data (for example, using pseudonymization or full anonymization where appropriate). Data controllers must design information systems with privacy in mind. For instance, using the highest-possible privacy settings by default, so that the datasets are not publicly available by default and cannot be used to identify a subject. No personal data may be processed unless this processing

3591-417: The pseudonymised data. Another example of pseudonymisation is tokenisation , which is a non-mathematical approach to protecting data at rest that replaces sensitive data with non-sensitive substitutes, referred to as tokens. While the tokens have no extrinsic or exploitable meaning or value, they allow for specific data to be fully or partially visible for processing and analytics while sensitive information

3654-675: The result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety upon those to whom it is addressed. Recommendations and opinions shall have no binding force. The Council can delegate legislative authority to the Commission and, depending on the area and the appropriate legislative procedure, both institutions can make laws. There are Council regulations and Commission regulations. Article 288 does not clearly distinguish between legislative acts and administrative acts, as

3717-515: The right to compensation. Article 82(1) GDPR requires for the award of damages (i) an infringement of the GDPR, (ii) (actual) damage suffered and (iii) a causal link between the infringement and the damage suffered. It is not necessary that the damage suffered reaches a certain degree of seriousness. There is no European defined concept of damage. Compensation is determined nationally in accordance with national law. The principles of equivalence and effectiveness must be taken into account. See also

3780-414: The rights and freedoms of data subjects. Risk assessment and mitigation is required and prior approval of the data protection authorities is required for high risks. Article 25 requires data protection to be designed into the development of business processes for products and services. Privacy settings must therefore be set at a high level by default, and technical and procedural measures shall be taken by

3843-435: The risks to the concerned data subjects and also to help controllers and processors to meet their data protection obligations (Recital 28). According to Article 30 records of processing activities have to be maintained by each organisation matching one of following criteria: Such requirements may be modified by each EU country. The records shall be in electronic form and the controller or the processor and, where applicable,

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3906-450: The service of documents, are needed from a foreign sovereign, states may attempt to cooperate informally through their respective police agencies or, alternatively, resort to what is typically referred to as requests for “mutual legal assistance." The practice of mutual legal assistance developed from the comity -based system of letters rogatory , though it is now far more common for states to make mutual legal assistance requests directly to

3969-450: The supervisory authority. The DPO is similar to a compliance officer and is also expected to be proficient at managing IT processes, data security (including dealing with cyberattacks ) and other critical business continuity issues associated with the holding and processing of personal and sensitive data. The skill set required stretches beyond understanding legal compliance with data protection laws and regulations. The DPO must maintain

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