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The General Data Protection Regulation 2016 replaces the EU Data Protection Directive of 1995 and supersedes the laws of individual Member States that were developed in compliance with the Data Protection Directive 95/46/EC. Its purpose is to protect the “rights and freedoms” of natural persons (i.e. living individuals) and to ensure that personal data is not processed without their knowledge, and, wherever possible, that it is processed with their consent.
Material scope (Article 2) – the GDPR applies to the processing of personal data wholly or partly by automated means (i.e. by computer) and to the processing other than by automated means of personal data (i.e. paper records) that form part of a filing system or are intended to form part of a filing system.
Territorial scope (Article 3) – the GDPR will apply to all controllers that are established in the EU (European Union) who process the personal data of data subjects, in the context of that establishment. It will also apply to controllers outside of the EU that process personal data in order to offer goods and services, or monitor the behavior of data subjects who are resident in the EU.
Establishment – the main establishment of the controller in the EU will be the place in which the controller makes the main decisions as to the purpose and means of its data processing activities. The main establishment of a processor in the EU will be its administrative center. If a controller is based outside the EU, it will have to appoint a representative in the jurisdiction in which the controller operates to act on behalf of the controller and deal with supervisory authorities.
Personal data – any information relating to an identified or identifiable natural person ('data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
Special categories of personal data – personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade-union membership, and the processing of genetic data, biometric data for the purpose of uniquely identifying a natural person, data concerning health or data concerning a natural person's sex life or sexual orientation.
Data controller – the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law.
Data subject – any living individual who is the subject of personal data held by an organization.
Processing – any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Profiling – is any form of automated processing of personal data intended to evaluate certain personal aspects relating to a natural person, or to analyze or predict that person’s performance at work, economic situation, location, health, personal preferences, reliability, or behavior. This definition is linked to the right of the data subject to object to profiling and a right to be informed about the existence of profiling, of measures based on profiling and the envisaged effects of profiling on the individual.
Personal data breach – a breach of security leading to the accidental, or unlawful, destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed. There is an obligation on the controller to report personal data breaches to the supervisory authority and where the breach is likely to adversely affect the personal data or privacy of the data subject.
Data subject consent - means any freely given, specific, informed and unambiguous indication of the data subject's wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data.
Child – the GDPR defines a child as anyone under the age of 16 years old, although this may be lowered to 13 by Member State law. The processing of personal data of a child is only lawful if parental or custodian consent has been obtained. The controller shall make reasonable efforts to verify in such cases that consent is given or authorized by the holder of parental responsibility over the child.
Third party – a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorized to process personal data.
Filing system – any structured set of personal data which are accessible according to specific criteria, whether centralized, decentralized or dispersed on a functional or geographical basis.
All processing of personal data must be conducted in accordance with the data protection principles as set out in Article 5 of the GDPR. Wiitrans’ policies and procedures are designed to ensure compliance with the principles.
Lawful – identify a lawful basis before you can process personal data. These are often referred to as the “conditions for processing”, for example consent.
Fairly – in order for processing to be fair, the data controller has to make certain information available to the data subjects as practicable. This applies whether the personal data was obtained directly from the data subjects or from other sources.
The GDPR has increased requirements about what information should be available to data subjects, which is covered in the ‘Transparency’ requirement.
Transparently – the GDPR includes rules on giving privacy information to data subjects in Articles 12, 13 and 14. These are detailed and specific, placing an emphasis on making privacy notices understandable and accessible. Information must be communicated to the data subject in an intelligible form using clear and plain language.
The specific information that must be provided to the data subject must, as a minimum, include:
•4.1.1 The identity and the contact details of the controller and, if any, of the controller's representative;
•4.1.2 The purposes of the processing for which the personal data are intended as well as the legal basis for the processing;
•4.1.3 The period for which the personal data will be stored;
•4.1.4 The existence of the rights to request access, rectification, erasure or to object to the processing, and the conditions (or lack of) relating to exercising these rights, such as whether the lawfulness of previous processing will be affected;
•4.1.5 The categories of personal data concerned;
•4.1.6 The recipients or categories of recipients of the personal data, where applicable;
•4.1.7 Where applicable, that the controller intends to transfer personal data to a recipient in a third country and the level of protection afforded to the data;
•4.1.8 Any further information necessary to guarantee fair processing.
Data obtained for specified purposes must not be used for a purpose that differs from those formally notified to the data subject.
•4.3.1 The Wiitrans is responsible for ensuring that Wiitrans does not collect information that is not strictly necessary for the purpose for which it is obtained.
•4.3.2 All data collection forms (electronic or paper-based), including data collection requirements in new information systems, must include a fair processing statement or link to privacy statement.
•4.3.3 The Wiitrans will ensure that, on an annual basis all data collection methods are reviewed by internal audit to ensure that collected data continues to be adequate, relevant and not excessive.
•4.4.1 Data that is stored by the data controller must be reviewed and updated as necessary. No data should be kept unless it is reasonable to assume that it is accurate.
•4.4.2 The Wiitrans is responsible for ensuring that all staff are trained in the importance of collecting accurate data and maintaining it.
•4.4.3 It is also the responsibility of the data subject to ensure that data held by Wiitrans is accurate and up to date. Completion of a registration or application form by a data subject will include a statement that the data contained therein is accurate at the date of submission.
•4.4.4 Employees/Staff and others should be required to notify Wiitrans of any changes in circumstance to enable personal records to be updated accordingly.
•4.4.5 Wiitrans ensuring that appropriate procedures and policies are in place to keep personal data accurate and up to date, taking into account the volume of data collected, the speed with which it might change and any other relevant factors.
•4.4.6 On at least an annual basis, Wiitrans will review the retention dates of all the personal data processed by Wiitrans, by reference to the data inventory, and will identify any data that is no longer required in the context of the registered purpose.
•4.4.7 The Wiitrans is responsible for responding to requests for rectification from data subjects within one month (Subject Access Request Procedure). This can be extended to a further two months for complex requests. If Wiitrans decides not to comply with the request, the Wiitrans must respond to the data subject to explain its reasoning and inform them of their right to complain to the supervisory authority and seek judicial remedy.
•4.4.8 The Wiitrans is responsible for making appropriate arrangements that, where third-party organizations may have been passed inaccurate or out-of-date personal data, to inform them that the information is inaccurate and/or out of date and is not to be used to inform decisions about the individuals concerned; and for passing any correction to the personal data to the third party where this is required.
•4.5.1 Where personal data is retained beyond the processing date, it will be minimized and encrypted in order to protect the identity of the data subject in the event of a data breach.
•4.5.2 Personal data will be retained in line with the Privacy Notice and, once its retention date is passed, it must be securely destroyed as set out in this procedure.
•4.5.3 Wiitrans must specifically approve any data retention that exceeds the retention periods defined in Privacy Notice, and must ensure that the justification is clearly identified and in line with the requirements of the data protection legislation. This approval must be written.
Wiitrans will carry out a risk assessment taking into account all the circumstances of Wiitrans’ controlling or processing operations.
In determining appropriateness, Wiitrans should also consider the extent of possible damage or loss that might be caused to individuals (e.g. staff or customers) if a security breach occurs, the effect of any security breach on Wiitrans itself, and any likely reputational damage including the possible loss of customer trust.
When assessing appropriate technical measures, Wiitrans will consider the following:
•Password protection
•Automatic locking of idle terminals;
•Removal of access rights for USB and other memory media
•Virus checking software and firewalls
•Role-based access rights including those assigned to temporary staff;
•Encryption of devices that leave the organisations premises such as laptops;
•Security of local and wide area networks;
•Privacy enhancing technologies such as pseudonym and anonymization;
•Identifying appropriate international security standards relevant to Wiitrans.
When assessing appropriate organizational measures the Wiitrans will consider the following:
•The appropriate training levels throughout Wiitrans;
•Measures that consider the reliability of employees (such as references etc.);
•The inclusion of data protection in employment contracts;
•Identification of disciplinary action measures for data breaches;
•Monitoring of staff for compliance with relevant security standards;
•Physical access controls to electronic and paper based records;
•Adoption of a clear desk policy;
•Storing of paper based data in lockable fire-proof cabinets;
•Restricting the use of portable electronic devices outside of the workplace;
•Restricting the use of employee’s own personal devices being used in the workplace;
•Adopting clear rules about passwords;
•Making regular backups of personal data and storing the media off-site;
•The imposition of contractual obligations on the importing organisations to take appropriate security measures when transferring data outside the EEA.
These controls have been selected on the basis of identified risks to personal data, and the potential for damage or distress to individuals whose data is being processed.
The GDPR includes provisions that promote accountability and governance. These complement the GDPR’s transparency requirements. The accountability principle in Article 5(2) requires Wiitrans to demonstrate that Wiitrans comply with the principles and states explicitly that this is Wiitrans responsibility.
Wiitrans will demonstrate compliance with the data protection principles by implementing data protection policies, adhering to codes of conduct, implementing technical and organisational measures, as well as adopting techniques such as data protection by design, breach notification procedures and incident response plans.
•5.1.1 To make subject access requests regarding the nature of information held and to whom it has been disclosed.
•5.1.2 To prevent processing likely to cause damage or distress.
•5.1.3 To prevent processing for purposes of direct marketing.
•5.1.4 To be informed about the mechanics of automated decision-taking process that will significantly affect them.
•5.1.5 To not have significant decisions that will affect them taken solely by automated process.
•5.1.6 To sue for compensation if they suffer damage by any contravention of the GDPR.
•5.1.7 To take action to rectify, block, erased, including the right to be forgotten, or destroy inaccurate data.
•5.1.8 To request the supervisory authority to assess whether any provision of the GDPR has been contravened.
•5.1.9 To have personal data provided to them in a structured, commonly used and machine-readable format, and the right to have that data transmitted to another controller.
•5.1.10 To object to any automated profiling that is occurring without consent.
•5.2.1 Data subjects may make data access requests.
•5.2.2 Data subjects have the right to complain to Wiitrans related to the processing of their personal data, the handling of a request from a data subject and appeals from a data subject on how complaints have been handled in line with the Complaints Procedure.
•In a lockable room with controlled access; and/or
•In a locked drawer or filing cabinet; and/or
•If computerized, password protected in line with corporate requirements in the Access Control Policy; and/or
•Stored on (removable) computer media which are encrypted in line with Secure Disposal of Storage Media.
The transfer of personal data outside of the EEA is prohibited unless one or more of the specified safeguards, or exceptions, apply:
•10.1.1 An adequacy decision
The European Commission can and does assess third countries, a territory and/or specific sectors within third countries to assess whether there is an appropriate level of protection for the rights and freedoms of natural persons. In these instances no authorisation is required.
Countries that are members of the European Economic Area (EEA) but not of the EU are accepted as having met the conditions for an adequacy decision.
A list of countries that currently satisfy the adequacy requirements of the Commission are published in the Official Journal of the European Union. http://ec.europa.eu/justice/data-protection/international-transfers/adequacy/index_en.htm
•10.1.2 Privacy Shield
If Wiitrans wishes to transfer personal data from the EU to an organization in the United States it should check that the organization is signed up with the Privacy Shield framework at the U.S. Department of Commerce. The obligation applying to companies under the Privacy Shield are contained in the “Privacy Principles”. The US DOC is responsible for managing and administering the Privacy Shield and ensuring that companies live up to their commitments. In order to be able to certify, companies must have a privacy policy in line with the Privacy Principles e.g. use, store and further transfer the personal data according to a strong set of data protection rules and safeguards. The protection given to the personal data applies regardless of whether the personal data is related to an EU resident or not. Organizations must renew their “membership” to the Privacy Shield on an annual basis. If they do not, they can no longer receive and use personal data from the EU under that framework.
•10.1.3 Binding corporate rules
Wiitrans may adopt approved binding corporate rules for the transfer of data outside the EU. This requires submission to the relevant supervisory authority for approval of the rules that Wiitrans is seeking to rely upon.
•10.1.4 Model contract clauses
Wiitrans may adopt approved model contract clauses for the transfer of data outside of the EEA. If Wiitrans adopts the model contract clauses approved by the relevant supervisory authority there is an automatic recognition of adequacy.
•10.1.5 Exceptions
In the absence of an adequacy decision, Privacy Shield membership, binding corporate rules and/or model contract clauses, a transfer of personal data to a third country or international organization shall only take place on one of the following conditions:
oThe data subject has explicitly consented to the proposed transfer, after having been informed of the possible risks of such transfers for the data subject due to the absence of an adequacy decision and appropriate safeguards;
oThe transfer is necessary for the performance of a contract between the data subject and the controller or the implementation of pre-contractual measures taken at the data subject's request;
oThe transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the controller and another natural or legal person;
oThe transfer is necessary for important reasons of public interest;
oThe transfer is necessary for the establishment, exercise or defence of legal claims; and/or
oThe transfer is necessary in order to protect the vital interests of the data subject or of other persons, where the data subject is physically or legally incapable of giving consent.
•Business processes that use personal data;
•Source of personal data;
•Volume of data subjects;
•Description of each item of personal data;
•Processing activity;
•Maintains the inventory of data categories of personal data processed;
•Documents the purpose(s) for which each category of personal data is used;
•Recipients, and potential recipients, of the personal data;
•The role of the Wiitrans throughout the data flow;
•Key systems and repositories;
•Any data transfers; and
•All retention and disposal requirements.
Wiitrans is the owner of this document and is responsible for ensuring that this record is reviewed in line with the reviewed requirements of the GDPR.
