GDPR FAQs

The GDPR was approved and adopted by the EU Parliament in April 2016. The regulation took effect after a two-year transition period and, unlike a directive, does not require any enabling legislation to be passed by government — meaning it came into force in May 2018.

The GDPR not only applies to organisations located within the EU, but also to organisations located outside of the EU if they offer goods or services to, or monitor the behaviour of, EU data subjects. It applies to all companies processing and holding the personal data of data subjects residing in the European Union, regardless of the company's location.

Organizations can be fined up to 4% of annual global turnover for breaching the GDPR, or €20 million. This is the maximum fine that can be imposed for the most serious infringements — e.g. not having sufficient customer consent to process data, or violating the core of Privacy by Design concepts. There is a tiered approach to fines: a company can be fined 2% for not having its records in order (Article 28), not notifying the supervising authority and data subject about a breach, or not conducting an impact assessment. These rules apply to both controllers and processors — meaning 'clouds' are not exempt from GDPR enforcement.

Any information related to a natural person, or 'data subject', that can be used to directly or indirectly identify the person. It can be anything from a name, a photo, an email address, bank details, posts on social networking websites, medical information, or a computer IP address.

A controller is the entity that determines the purposes, conditions and means of the processing of personal data, while the processor is an entity which processes personal data on behalf of the controller.

The conditions for consent have been strengthened. The request for consent must be given in an intelligible and easily accessible form, with the purpose for data processing attached to that consent — meaning it must be unambiguous. Consent must be clear and distinguishable from other matters, using clear and plain language, and it must be as easy to withdraw as it is to give. Explicit consent is required only for processing sensitive personal data — in this context, nothing short of 'opt in' will suffice. However, for non-sensitive data, 'unambiguous' consent will suffice.

Parental consent is required to process the personal data of children under the age of 16 for online services. Member states may legislate for a lower age of consent, but this will not be below the age of 13.

A regulation is a binding legislative act. It must be applied in its entirety across the EU, while a directive is a legislative act that sets out a goal that all EU countries must achieve — though it is up to the individual countries to decide how. It is important to note that the GDPR is a regulation, in contrast to the previous legislation, which was a directive.

DPOs must be appointed in the case of: (a) public authorities, (b) organizations that engage in large-scale systematic monitoring, or (c) organizations that engage in large-scale processing of sensitive personal data (Article 37). If your organization does not fall into one of these categories, then you do not need to appoint a DPO.

Regulations surrounding data breaches primarily relate to the notification policies of companies that have been breached. Data breaches which may pose a risk to individuals must be notified to the DPA within 72 hours and to affected individuals without undue delay.

The one-stop-shop principle was among the most highly debated aspects of the regulation. It relies on a lead Data Protection Authority for cross-border cases, with cooperation between all concerned DPAs and an enhanced role for the European Data Protection Board where the lead DPA is unclear or the consistency mechanism is invoked.