As a public body, you are required to appoint a data protection officer. That officer may be an existing staff member, provided that they have suitable training. They may fulfil other tasks and duties, as long as these duties do not result in a conflict of interests. The same person can act as the data protection officer for more than one organisation, so you could share a DPO with other schools or the local authority. (GDPR Art. 37-39) If no-one in your organisation is competent to act as a DPO, then you were almost certainly breaching the Data Protection Act.
https://gdpr-info.eu/art-37-gdpr/
>Things like publicly visible visitors books are outlawed (depending on how you read guidance), the alternative are electronic systems - more cost.
They were already illegal under the Data Protection Act. You can use visitor forms or cards instead of a visitor book - the receptionist still has a record of visitors, but their personal information isn't on display.
>Displaying certain sensitive information, prescriptions for pupils, are now outlawed, this could compromise safety.
This was already illegal under the Data Protection Act. If parents want staff to be aware of sensitive medical information relating to their child, you should have taken a written declaration consenting for that information to be shared. That information should not be displayed in a place where pupils, visitors or any other unauthorised person might see it.
Furthermore, in Ireland, for example, fines cannot be levied against public authorities: https://www.irishtimes.com/news/crime-and-law/public-bodies-...
[1] https://www.lexology.com/library/detail.aspx?g=e71ac55f-566b...
http://www.legislation.gov.uk/ukpga/2018/12/pdfs/ukpga_20180...
Naive question: isn't the data officer basically a single point of contact on data issues (and have some general knowledge on the topic)? Why can it not be someone working at the school?
By default, if they cannot delegate, wouldn't the responsibility go to the director of the school?
I feel like we tend to be overly pedantic in how we interpret some of the GDPR. For example, a small shop might not have a physical security officer. The owner/manager of the shop still has to have some general sense about ensuring the physical security of the shop, dealing with contractors/vendors (alarm system), etc.
With data collection, isn't it the same? Aren't people already doing this? No one would collect data, and not care about its basic security?
I think it's great that GDPR is forcing people to wonder: what data do we have, is it shared, who is responsible, what's the retention, and can it be deleted on request. After that, I don't buy into the fear mongers trying to make a quick buck.
If the small shop happens to be collecting sensitive personal data -- health data, political affiliations or union membership, etc. -- (a) they should probably stop and (b) they would need a DPO.
Highly unlikely in any case !
As to the DPO, it is meant to be an independent person within the organisation, who cannot be unduly influenced by management, etc. Assigning the role to a regular employee who, e.g., reports to the principal and is a teacher by day, would not seem to satisfy the requirement.
Bear in mind that a DPO has to have "expert knowledge of data protection law and practices and the ability to fulfil the tasks referred to in Article 39".
> Where the core activities of the organisation (controller or processor) consist of data processing operations, which require regular and systematic monitoring of individuals on a large scale
Small shops contain things that they sell, and they also keep records of selling things for tax purposes, and may even have video cameras to avoid getting robbed. IANAL but isn't that a lot of data processing operations, and isn't there lots of systematic monitoring of individuals?
Or are you saying that because it's not "large scale" (e.g. only 100 people walk in a day) and it doesn't have sensitive data, then it's immune?
A shop only processes personal data as a secondary activity, with their core activity being selling merchandise. The data they do process is not in a specially protected category under the GDPR and pertains only to their business rather than the wider lives of their customers. They do not need a designated DPO.
A social media network, an ad tech company or a credit reference agency does need a DPO. A manufacturer of IoT gadgets that constantly phone home with a stream of usage data almost certainly needs a DPO. If the IoT gadget I sold you tells me what time you get home from work and what time you go to bed, that sounds an awful lot like "regular and systematic monitoring". A manufacturer of IoT gadgets that only phone home occasionally with fully anonymised error logs probably doesn't need a DPO.
From what I recall on the info I've seen locally is that you don't need a DPO until you hit 250 employees.
The core activities of a small shop include some data processing operations that don't require monitoring people (e.g. records of what they sell), and an anti-robbery video camera isn't a core activity of their business; I'd even assume that it's not looked at most of the time and is even more likely to be outsourced to some security company (which would have a DPO).
Um...
I think that's exactly what most small organizations do.
Does this mean the quaint guest book visitors could sign at the hotel I stayed in a couple weeks ago would be illegal under the GDPR?
They would need to provide functionality such that an EU resident could request timely export and deletion of any records belonging to them in that guestbook.
If your guestbook is physical and substantial, this may be limiting without additional systems, but GDPR also is rather vague in the pushback you're allowed to give if you're completing the export with best intentions, so this will likely not be settled until precedent occurs; this will be even more grey-area due to considerations of "ease of access" of the information in question, and other "softer" considerations.
So to answer your question more bluntly: Without the bare minimum of a business process for someone to call up and say "I want to export/delete my entry in your guestbook" I'd say the experts who guided my team would probably agree that the business owner should err on the side of assuming non-compliance, so long as you don't reasonably preclude EU visitors.
I've given you the benefit of the doubt in answering this honestly but I don't think you read my initial response charitably.
If you want to take it further, you could ask them to submit a small form confirming their consent.
Worst case, you redact their name -- use a marker! -- and document that process as part of your data review.
Either way, it's complete overkill. It's not about following the letter of the law; it's about the spirit of the law. No one is going to get sued or fined for providing a public guest book.
First, pedantically, (But in the interest of maintaining my "trying to reiterate the letter of the law as I understand it") I'm pretty sure interactive/implied consent isn't considered sufficient; (Interactive consent being what was allowed for EU cookie compliance) and that one cannot "Sign away" GDPR protection.
Second, while I agree that it's overkill, I'm operating from the "This is the rigorous interpretation that people far more legally versed than myself have established". This may not be the right decision for a smaller corp or business entity, as it is in my case for a notable multinational. While I might agree that I'd have an absolute spit-take if such a small entity were made an example of, I can also understand the paranoia on the other side, especially given the context of US jurisprudence and how it differs from the "tone" of EU-style enforcement.
You're right, though: strictly speaking, it's not compliant.
And then you are fined 4% of revenue when you are the scapegoat setting a precedent for a vaguely defined law...
2: Yes some terms are vague, some part are vague too (what is considered "big scale"...) but if you want to cry about a vague law that enable government to shut down businesses, look at FOSTA-SESTA. This law is also vague to allow european countries to tinker around. Moreover, a vague law is often in favor of the defendant on european courts (if a litigation is ever taken to european court), so this is an advantage for owners.
3. A warning will be issued before any fine, then some time would be given to comply. If complying is difficult, regulatory instances have to help you by giving you ideas/examples/advice.
4. In the case of a physical guestbook, i'm pretty sure the regulatory instances will just laugh at the demand and ignore it anyway.
5. We had a CNIL contact before the GDPR was even drafted (we host health data) and we store non-hashed IP address of our customers (for ip whitelisting), name, surname, email address and phone number. Everything seems good for him as long as our security audits every year are good. I'm pretty sure we hold more client data than almost every small to medium shop whose business is not selling customer data, yet members of regulatory instance say we are okay. This panic is ridiculous.
I have to laugh since you are telling me to stop spreading FUD and you can't even cite off the top of your head if the fine is 4% or 2%.
The fine is 4% of worldwide revenue or $20million (whichever is larger).
>(i dont think even Cambridge analytica would qualify to max fine, even if they were a persistant offender).
Can you cite the section of the law that makes you so confident in making this assertion?
All the people telling me to stop worrying don't seem to have any ground to stand on. I've read so many feel good assertions about how "this is not how EU law works" and I can't trust any of them since none of the assertions people are stating so confidently are written into the actual law.
All I know is what is possible. If I am violating GDPR in any way I could be fined $20 million dollars and frankly I don't want to be one of the legal pioneers to find out how each of the 28 member states of the EU will interpret how to apply this law.
It is incorrect to suggest that a simple error will lead to the maximum fine. Here is the text of the regulation that sets out all the tests.
https://gdpr-info.eu/art-83-gdpr/
---begin---
Art. 83 GDPR General conditions for imposing administrative fines
Each supervisory authority shall ensure that the imposition of administrative fines pursuant to this Article in respect of infringements of this Regulation referred to in paragraphs 4, 5 and 6 shall in each individual case be effective, proportionate and dissuasive.
1Administrative fines shall, depending on the circumstances of each individual case, be imposed in addition to, or instead of, measures referred to in points (a) to (h) and (j) of Article 58(2). 2When deciding whether to impose an administrative fine and deciding on the amount of the administrative fine in each individual case due regard shall be given to the following:
> the nature, gravity and duration of the infringement taking into account the nature scope or purpose of the processing concerned as well as the number of data subjects affected and the level of damage suffered by them;
> the intentional or negligent character of the infringement;
> any action taken by the controller or processor to mitigate the damage suffered by data subjects;
> the degree of responsibility of the controller or processor taking into account technical and organisational measures implemented by them pursuant to Articles 25 and 32;
> any relevant previous infringements by the controller or processor;
> the degree of cooperation with the supervisory authority, in order to remedy the infringement and mitigate the possible adverse effects of the infringement;
> the categories of personal data affected by the infringement;
> the manner in which the infringement became known to the supervisory authority, in particular whether, and if so to what extent, the controller or processor notified the infringement;
> where measures referred to in Article 58(2) have previously been ordered against the controller or processor concerned with regard to the same subject-matter, compliance with those measures;
> adherence to approved codes of conduct pursuant to Article 40 or approved certification mechanisms pursuant to Article 42; and
> any other aggravating or mitigating factor applicable to the circumstances of the case, such as financial benefits gained, or losses avoided, directly or indirectly, from the infringement.
If a controller or processor intentionally or negligently, for the same or linked processing operations, infringes several provisions of this Regulation, the total amount of the administrative fine shall not exceed the amount specified for the gravest infringement.
Infringements of the following provisions shall, in accordance with paragraph 2, be subject to administrative fines up to 10 000 000 EUR, or in the case of an undertaking, up to 2 % of the total worldwide annual turnover of the preceding financial year, whichever is higher:
> the obligations of the controller and the processor pursuant to Articles 8, 11, 25 to 39 and 42 and 43;
> the obligations of the certification body pursuant to Articles 42 and 43;
> the obligations of the monitoring body pursuant to Article 41(4).
Infringements of the following provisions shall, in accordance with paragraph 2, be subject to administrative fines up to 20 000 000 EUR, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher:
> the basic principles for processing, including conditions for consent, pursuant to Articles 5, 6, 7 and 9;
> the data subjects’ rights pursuant to Articles 12 to 22;
> the transfers of personal data to a recipient in a third country or an international organisation pursuant to Articles 44 to 49;
> any obligations pursuant to Member State law adopted under Chapter IX;
> non-compliance with an order or a temporary or definitive limitation on processing or the suspension of data flows by the supervisory authority pursuant to Article 58(2) or failure to provide access in violation of Article 58(1).
Non-compliance with an order by the supervisory authority as referred to in Article 58(2) shall, in accordance with paragraph 2 of this Article, be subject to administrative fines up to 20 000 000 EUR, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher.
Without prejudice to the corrective powers of supervisory authorities pursuant to Article 58(2), each Member State may lay down the rules on whether and to what extent administrative fines may be imposed on public authorities and bodies established in that Member State.
The exercise by the supervisory authority of its powers under this Article shall be subject to appropriate procedural safeguards in accordance with Union and Member State law, including effective judicial remedy and due process.
1Where the legal system of the Member State does not provide for administrative fines, this Article may be applied in such a manner that the fine is initiated by the competent supervisory authority and imposed by competent national courts, while ensuring that those legal remedies are effective and have an equivalent effect to the administrative fines imposed by supervisory authorities. 2In any event, the fines imposed shall be effective, proportionate and dissuasive. 3Those Member States shall notify to the Commission the provisions of their laws which they adopt pursuant to this paragraph by 25 May 2018 and, without delay, any subsequent amendment law or amendment affecting them.
Infringements of the following provisions shall, in accordance with paragraph 2, be subject to administrative fines >up to 20 000 000 EUR, or in the case of an undertaking, up to 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher:
the basic principles for processing, including conditions for consent, pursuant to Articles 5, 6, 7 and 9;And, again, that's the maximum possible fine for the worst case - taking into account all of this:
> the nature, gravity and duration of the infringement taking into account the nature scope or purpose of the processing concerned as well as the number of data subjects affected and the level of damage suffered by them;
> the intentional or negligent character of the infringement;
> any action taken by the controller or processor to mitigate the damage suffered by data subjects;
> the degree of responsibility of the controller or processor taking into account technical and organisational measures implemented by them pursuant to Articles 25 and 32;
> any relevant previous infringements by the controller or processor;
> the degree of cooperation with the supervisory authority, in order to remedy the infringement and mitigate the possible adverse effects of the infringement;
> the categories of personal data affected by the infringement;
> the manner in which the infringement became known to the supervisory authority, in particular whether, and if so to what extent, the controller or processor notified the infringement;
> where measures referred to in Article 58(2) have previously been ordered against the controller or processor concerned with regard to the same subject-matter, compliance with those measures;
> adherence to approved codes of conduct pursuant to Article 40 or approved certification mechanisms pursuant to Article 42; and
> any other aggravating or mitigating factor applicable to the circumstances of the case, such as financial benefits gained, or losses avoided, directly or indirectly, from the infringement.
the 4% is the maximun fine allowed.. its not a minimum..
this FUD is getting idiotic.
You can say that in practice this would never happen, but calling it FUD also doesn't seem right since the regulation is super vague and only mentions maximum fines, not likely actual fines.
I think it's always safe to assume the worst from bureaucrats. Especially when no sentencing guidelines exist.
No it isn't. As a law-abiding web developer, I have had frequent contact with European data protection authorities for many years. Without exception, they have been thoughtful, reasonable and gone out of their way to help me comply with the regulations.
The regulatory authorities exist to ensure compliance, nothing more. They are not a revenue-generating scheme or a Kafkaesque bureaucracy.
The GDPR explicitly states that penalties must be proportionate and sets out no fewer than eleven factors that must be considered before any penalty is issued. It also explicitly establishes a mechanism for ensuring that enforcement is consistent across all member states, by means of the European Data Protection Board. The regulations simply do not allow a member state to "go rogue" and start handing out €20m fines for trivial infractions.
Proportionate to what? The max fine is 4% or revenue or $20 million dollars, whichever is larger.
So is it proportionate to the $20 million dollar fine? If my infraction was small they can just fine me a small proportionate fine of 1% of the maximum.
Why couldn't the EU bureaucrats have stated in clear terms what infractions would receive what fines? Why couldn't they have released a sentencing guideline? And there will be 28 countries applying this law and setting fines in a thousand different ways.
> They are not a revenue-generating scheme or a Kafkaesque bureaucracy.
This law is absolutely kafkaesque and you can't point to any written case law or section of the law that can concretely dispel my doubts since it does not exist. All you and other posters can do is state that I'm spreading FUD and give me feel good assertions about how I can trust in the benevolent EU bureaucracy and that I should have faith in the system. Can you not understand why I can't take that seriously when millions of dollars and my entire way of life are at stake?
"So, using customer email addresses for marketing lists and not infringing any other way is a worth a 0.1% of revenue fine but our analysts project a 0.5% increase in revenue from our marketing list, so let's do it anyway". It's to give authorities scope to punish organisations making calculations like the above, more than "Your local library decided to tell everyone who took out a book last year about their new book club, not realising it's an illegal use of personal data".
Anyway, all regulatory instances are working together (in a group named G29, imagination is not their strength) to draw guidelines for fines and warnings. They will also discuss together ongoing cases (to avoid multiple prosecutions i guess). If you are not trying to cheat data from your customers and if your security is up to date, you risk nothing.
The fact is, if I am not GDPR compliant in any way there is no mechanism built into the law to limit the amount I am fined and some judge that is in a bad mood or hates the idea of my business can simply fine me 20 million to kill my business and still be abiding by the letter of the law.
For signing a guestbook or something similarly trivial? No.
If you truly believe that (if it really escalated) the European Commission, and then the European parliament, and then ultimately the European Court of Justice is going to put up with 20-million-fine-for-a-guestbook shenanigans, I don't know what to tell you, except that I think your definition of "reasonable" is not reasonable.
Maybe I'm not jaded enough, and I can believe in a single bad actor, but all of them? Including an entire institution that has direct public accountability?
As an aside, I think it would be helpful if participants in GDPR discussions would indicate if they approach it from a USA or EU angle (or even a non-EU and non-USA perspective. I've haven't really noticed any specific opinions from outside the USA/EU).
For the infraction of having a guestbook? Absolutely not.
"The fact is, if I am not GDPR compliant in any way there is no mechanism built into the law to limit the amount I am fined"
I don't see that as a problem.
" some judge that is in a bad mood or hates the idea of my business can simply fine me 20 million to kill my business and still be abiding by the letter of the law."
Then you appeal. You're acting like there's no recourse or appeals mechanism for you.
The law specifies the maximum fine, so you can't go over that. It also specifies that fines have to be proportionate. If you think the fine is disproportionate you have the right to appeal - that is also built into the law. If you think the appeal erred in law you get further rights of appeal. If your country hasn't made these legal routes available to you then you can take your country to the European courts.
So if you don't file the sign in book, it's out of scope of the GDPR.
(What wouldn't be fine is scraping the guest book, and then using that info)
Yeah, it's gonna take you ten, fifteen minutes, but how often is it going to happen, realistically?
2) If you stick the original in the shredder, you are removing much more than just the requestor's data.
You can ask for whatever you like. If I hold any data about you, I have to provide it. It is my responsibility to either store personal data in a form that is amenable to access requests by data subjects, or delete it immediately.
>2) If you stick the original in the shredder, you are removing much more than just the requestor's data.
There is no "right to retention" under the GDPR. Unless I am obliged to retain that particular data under some other legislation, the GDPR requires me to retain it "for no longer than is necessary for the purposes for which the personal data are processed". The regulations specifically require you to delete personal data as soon as possible. Throwing the whole damned book into the shredder is not only permissible but actively encouraged.
Sounds like a DDoS waiting to happen.
If the data subject access request is sent by email, you can take it a step further and scan and email that page. Still, it does not have to be machine readable.
It has nothing to do with data subject access requests, which is encoded in Article 15: https://gdpr-info.eu/art-15-gdpr/
"Where the data subject makes the request by electronic means, and unless otherwise requested by the data subject, the information shall be provided in a commonly used electronic form."
That does not mean machine readable.
the processing is carried out by automated means.
At best, you can challenge them to remove the page with your contribution to the guest book.
Why? That isn't a requirement of the law. I could understand how existing staff wouldn't want to take on the role without additional renumeration, but the liability would naturally fall on the head.
> The data protection officer may fulfil other tasks and duties. The controller or processor shall ensure that any such tasks and duties do not result in a conflict of interests.
It seems to me a bit of a stretch that working in IT is a conflict of interest with adhering to data processing regulations; ensuring that your infrastructure is compliant is generally one of the remits of the IT function. You could convince me that the head of "analytics and user data extraction" at Facebook might have a conflict of interest with the DPO hat, but I'm skeptical about the broader claim that these conflicts are hard to avoid.
That's a bit like saying auditing/compliance is something that you might as well let the accounting department take care of. It's certainly true that making sure you're compliant with various regulations is a large part of what someone in accounting does, but it seems pretty clear that you can't let the same person be the auditor as well without a conflict of interest, and that's roughly what the role of a data protection officer is all about.
There's some evidence that data protection authorities share this view; a German authority fined a company after they appointed the IT manager as their DPO[1] (sorry, German-only source). It might be too early to say for sure how this will play out, but I wouldn't gamble on data protection authorities accepting just any IT employee unless they're working in some very specific role that prevents any conflict of interest.
What DPO is that case about? Is it under the DPD (which GDPR supersedes)? If so, what does the DPD say about conflicts of interest and DPOs?
If the law that this case was prosecuted under has as loose a definition as the GDPR, then you're right that this implies German regulators could well enact the GDPR under that interpretation too.
We're talking about a school here.
If a school has to say, "We can't appoint our IT-person, because they're also the one aggregating and profiling the data-profiles of our students for advertisers, so it would be a conflict of interest," that school has bigger problems than GDPR compliance.
They'd be responsible, liable for compliance.
> Displaying certain sensitive information, prescriptions for pupils, are now outlawed, this could compromise safety.
Oh no! Protecting pupil's private information. For me, the shocking part is that the suppliers aren't receiving anonymized data already.
There seems to be two types of responses to GDPR. On one side people saying "I don't see what the problem is with just doing the right thing!" and on the other people that have thought about it in a real-world scenario to realise what the problems might be.
I don't know because I didn't write the original post. However your interpretation seems rather peculiar considering the last part of the sentence explicitly mentioned safety issues. One should surely give the original commentator the benefit of the doubt that he talking about a real issue and not just saying "I don't care about pupil's privacy"
1. Most organisations do NOT need a Data Protection Officer (DPO). There are a set of criteria for determining if you do. Here is guidance on it from the Irish DPC: http://gdprandyou.ie/data-protection-officer/
If they are processing health data, then technically, yes, you might need one. You can consider outsourcing the DPO role to a privacy consultant; it may be the most sensible option.
2. If your data processors have not put agreements in place, then you are legally obliged to do so yourselves. This can actually be an advantage because you set the terms. Unfortunately, again it's best to seek professional advice, preferably legal advice when it comes to drafting contracts. I would go so far as to ask your solicitor to send a "threatening" letter with the agreement they need to sign.
3. Why does the visitor book need to be publicly visible? Is there a secretary or receptionist who could handle the book? Switching it to an electronic system is not necessarily going to meet the requirement. (GDPR is intentionally technologically neutral by the way -- there is no inherent advantage of one medium over another, so long as you're collecting and using data in a justifiable way, and meeting the other data controller requirements.)
4. Again, regarding display of health data, which is considered sensitive personal data, I would say it depends. GDPR is not a series of absolute dictums. Use of data does have to be explained and documented, and I believe you could seek parental consent for display of that information under certain circumstances. (Presumably to teachers who will be overseeing children?)
5. The vagueness of the legislation is definitely a problem. The GDPR does allow for an official certification[i], which will be a huge improvement (whenever we see it!).
All the scaremongering aside, the reality is that the legislation is still largely untested. We can fully expect to see a series of test cases appear over the coming months, which will provide clarity.
However, it's important to note and realise that no data protection authorities are going to start doling out extreme fines come Friday morning.
Even if an organisation is reported to the authority, there will undoubtedly be opportunities for remediation first and, unless it's a serious data breach, I seriously doubt anyone will receive a significant fine any time soon.
Facebook, on the other hand...
6. When it comes to training and certification, I'd recommend the IAPP: https://iapp.org/
They are one of the thought leaders in the space, and have a solid track record, with affiliations with lots of reputable privacy consultants.
[i] http://www.privacy-regulation.eu/en/article-42-certification...
Professional guidance is needed for many things, and usually it's not cheap for any of it.
There are many, many unresolved issues:
We are supposed to employ a 'data officer' this basically cannot be anyone who works in the school at present. We sought volunteers but didn't get a single applicant. It is difficult to justify paying someone to do it (if you can find a qualified person) - the budget for things like school books is already paper thin.
I contact external suppliers who use our data and receive a wall of silence.
Things like publicly visible visitors books are outlawed (depending on how you read guidance), the alternative are electronic systems - more cost.
Displaying certain sensitive information, prescriptions for pupils, are now outlawed, this could compromise safety.
There seems to be a raft of GDPR training systems which are basically a single page questionnaire, costing upwards of £300.
I don't have an issue with what the legislation is trying to do it just seems so vaguely implemented. Basically we all know that the organisations who need to clean up their act will be doing the least to comply.