GDPR demystified for sole traders and small businesses: Part 2

Bake Your Cookies Well

 

One of the major aspects of GDPR compliance is the use and management of cookies. Visitors to your website must be notified of your use of cookies, why you use them and what they are for. Information on the term of duration of cookies is also strongly advised.

Furthermore you are required to have visitor’s explicit consent to deploy cookies to their devices, and provide clear options and mechanisms to edit and revoke cookie preferences.

Trickiest of all however, is the actual timing of the deployment of cookies and whether visitor preferences are actually honoured by your website and/or Apps. This will require technical input from IT personnel.

To comply with the principles of GDPR, NO cookie deployment should occur before getting explicit consent for any level of cookie use if possible, whether necessary, functional or more.

All About Cookies

Explicit Consent

 

Another major requirement is obtaining visitor explicit consent for collection of personal data. Simply providing an option to opt out is insufficient, an obvious and clear opt in is required to be explicit.

Opt in boxes and fields that are checked by default are definitely not compliant, as these are not explicit opt ins. Similarly, providing neither an opt in or an opt out is certainly in breach of the regulations.

In addition, visitors must be provided with appropriate mechanisms to view, collect, rectify and delete their data, and exercise their right to be forgotten at any time.

While consent is required in most cases for processing personal data, it is not required in cases where there is a lawful basis for data collection, storage and processing. Such information should be clearly noted within the privacy policy.

GDPR defines persons below the age of 16 years to be children and can not give their explicit consent for their personal data to be collected, stored or processed.

Finally, to ensure you are able to demonstrate compliance in obtaining explicit consent, it is strongly recommended to have in place a system to record and store identifiable consents indefinitely. This again will require input from IT personnel.

 

Enhanced Awareness and Training

 

Awareness training of key personnel and decision makers (or just yourself) regarding the principles, individuals’ rights and primary mechanisms of GDPR is essential, to identify potential impacts and to design compliant data management systems.

Similarly, as GDPR is likely to result in changes to your business and perhaps the way you do business, procedural training may be required also.

Resultant changes to business may impact operating costs, though are more likely to scale up with the size of the business or organisation.

Highly recommended is the implementation of employee and sub-contractor data confidentiality agreements to further protect personal data.

If you use third party services and sub-contractors then you need to communicate with them and reach agreements on handling data according to GDPR, which may affect their business processes also.

It is your responsibility under GDPR to know how the data you collect and share is being treated by third parties you employ.

Know Where Your Data Goes

 

Vital to informing of your potential risks and exposures under GDPR is to understand how and where data moves within your company or organisation. Assessing and documenting how information flows through your systems will help to comply with GDPR.

Essential to this process is creating a Data Flow Map that illustrates how and from where data is collected, how it moves through the organisation, how and where it is processed, and what third parties may be involved.

This will make potential GDPR compliance issues clearer and also highlight actual and potential data security risk areas and processes.

Furthermore it may be pertinent to instigate GDPR related conditions and clauses in contracts with third party data processors, sub-contractors and suppliers to ensure “downstream” protection of your customers’ personal data.

Contact Us for help mapping your data flows.

Demonstrate Your Integrity

 

Explain clearly how you guarantee to protect your visitors and customers private data in your Privacy Policy. Required by GDPR is the communication of this information in easy to understand language, clear and concise.

Specifically you must explain the legal basis for data processing, how long you retain the data, that users have the right to complain if dissatisfied with your data processes, if their data is subject to automated decision making, how their data is being shared, and their various rights under GDPR.

In addition you should explain and provide mechanisms for registering complaints with your organisation and preferably regulators also.

Remember that transparency is the key ethos here, and if you are complying with the principles and regulations of GDPR you have nothing to hide and should be very open about your data management.

 

Privacy Will Generate More Business In Time

 

In fact, you should make a point of your commitment to privacy and sing it from the roof tops so that customers current and future will know you value their data security very highly.

Key movers and shakers like Google regularly comment that in the coming years online brand will be a massive determining factor in search rankings and indexing.

Why? Because there is such a proliferation of websites, blogs and Apps with massive amounts of content being generated every day that it is increasingly difficult to determine what is good, valuable content and what is not.

More and more the big players like Google look to factors that indicate the strength of your brand as a marker of your products, services and content being worthy of attention.

In the future, data privacy is going to be a major aspect of how consumers view your business. Clearly, if you have a reputation for less than secure data privacy and management, you’re going to lose customers fast!

Remember, those who complain the most loudly about data privacy compliance are usually the ones who have the most to hide about what they do with personal data!

I know I want my data kept private and secure and it’s the primary commitment I make to my customers.

 

Privacy As An Ethos

 

Compliance with GDPR is best achieved if you make data privacy a key ethos in your organisation. In fact you owe it to your business to do so, because the security of your data processes is directly proportional to the overall security of your business.

Data security is a hugely important aspect of the online marketplace and continually increasing in importance. If you fail to comply with GDPR you have a business model that most likely has potentially critical data breach risk areas.

Hacking of digital assets and identifiable personal data breaches can be massively costly to any business, with potential to cripple a business depending on the severity of the breach.

GDPR recommends “data protection by design and by default” and I recommend it as a key step in addressing all potential security risks, even if not involving personal data. If you haven’t taken personal data security seriously, then for sure you are not taking your overall digital security seriously enough either.

Protect yourself from liability and secure your business by designing privacy safeguards and measures into your data processes from the very beginning. This is called data protection by design.

Collect only the minimum amount of data necessary to perform service and functionality to your customers and visitors, with a short storage period and with limited and secure accessibility.

So that by default, personal data isn’t accessible to unauthorised data processors or any other third parties, without explicit consent of the individual. This is data protection by default.

It’s Not Just Online Data

 

A common misconception is that GDPR applies only to personal data collected from websites. It applies to all forms of personally identifiable data collected from social media, email, correspondence, accounts, online and offline forms and applications.

Therefore, no matter what means of collection were used, all personal data of EU subjects is protected by GDPR, as the core principle is protection of data in any format.

As a result this has potentially far reaching implications for any business as there are technical and legal considerations in the fields of human resources, marketing, general IT and security.

 

An Appointed Controller

 

First of all GDPR stipulates the appointment of a Data Protection Officer (DPO) in specific circumstances, typically related to large volumes and specific types of more sensitive data. In such cases it may be required of either a Data Controller or Processor to appoint a DPO.

For the reason that your data collection, storage and processing parameters are not likely to fall into these categories, you would not likely be required to appoint a DPO.

However, as it is a requirement to provide mechanisms for users to register complaints and make other requests pertaining to their data, it is a wise step to appoint an officer responsible for conducting procedures as required by GDPR.

Therefore it is a good idea to have a responsible and suitably trained person to act as Data Controller, if you are a solopreneur then yourself is the obvious choice here!

Finally the Data Controller should be named in the Privacy Policy and the means to contact them, such as email and phone number.

The controller must be easily contactable in the event of registering a complaint, making data protection enquiries and communication in the event of a data breach incident.

Noteworthy however, typically IT and marketing personnel are not the most appropriate choice as Data Controller or indeed a DPO. It is reasonable to assume that the nature of their work would pose a potential conflict of interest regarding personal data.

 

Providing For Individuals Rights

 

There are a number of rights of the individual provided for under GDPR, the full list we explained in Part 1 of these articles.

Rights are covered by various mechanisms required by GDPR, some of which are addressed by the Privacy Policy, Cookie notification and editing function.

Others such as right of access, right to rectification, right to erasure and the right to data portability need to have a user friendly mechanism for the user to execute these rights.

Mechanisms must provide for communication with the data controller, functionality for the user to edit and download and export data.

Furthermore it should record all user requests and subsequent proof of processing of data requests, to provide evidence of meeting duty of care in personal data matters.

This will require alterations to websites, requiring IT personnel input, and other data streams including email, marketing (especially email marketing), social media and purchasing processes.

 

The Dreaded Data Breach Incident

 

Firstly let me explain that a data breach incident is any event whereby personal data has, or is suspected of being accessed by unauthorised parties.

If no personally identifiable information (PII) has been breached then the reporting requirements to both regulators and individuals are more relaxed, however irrefutable evidence that no PII has been breached will need to be provided in this case.

Therefore it is essential to develop Data Breach Policies and Procedures that cover monitoring for internal and external breaches, and detail appropriate responses including reporting to regulators and individuals.

Furthermore, all available digital security methods and mechanisms should be implemented to ensure data security, these measures then audited frequently to ensure continued security against evolving threats.

Finally, Article 33 of EU GDPR defines the data breach notification to the supervisory authority procedure as;

In the case of a personal data breach, the controller shall without undue delay and, where feasible, not later than 72 hours after having become aware of it, notify the personal data breach to the supervisory authority competent in accordance with Article 55, unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons. Where the notification to the supervisory authority is not made within 72 hours, it shall be accompanied by reasons for the delay.

And notification of a data breach to an individual, or data subject as;

When the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, the controller shall communicate the personal data breach to the data subject without undue delay.

Advisable is to make this notification as quickly as possible and certainly not more than 48 hours after detecting a possible breach. Time is required to determine the nature, content and severity of a breach. (Note: this is not legal advice!)

Data Sharing Outside of EU

 

In principle you can not transfer personal data outside of the European Union to a third party or country.

However, it is permissible if consent is obtained and the process is assessed and approved by the supervisory authority.

Essentially you could say that providing the sharing and processing of the data was clearly explained, the legal basis for it clearly defined, and all individuals rights provided for, then sharing and exporting of data may be permissible.

The supervisory authority would need to approve standards, measures, procedures, clauses and other mechanisms put in place by a third party country, company or organisation that would ensure all such data transfer and processing met the provisions of the GDPR. Legal advice should be sought in this case.

Making Sure It All Works

 

GDPR compliance and data protection in general is not a one time fix, it is a moving goal post, most certainly because cyber security threats are evolving daily.

It certainly is a relief to arrive at a point of compliance no matter the scale, but the process does not end there.

As your business or organisation evolves new aspects and processes will arise. All of these must also comply with GDPR, so new aspects and processes must incorporate data security by design.

It may be necessary to conduct Privacy Impact Assessments (PIA) for new technology or where processes have potentially significant data protection implications.

Existing processes and procedures should be regularly audited for efficacy and against new cyber threats.

Furthermore, legislation is never static so your processes, policies and procedures need to be re-evaluated against changes in regulations as they evolve.

If you want to get GDPR Compliant fast and simple, contact us, we service SME’s and solopreneurs in the fields of Ecotourism, Wellness Retreats, Nature Conservation and Wellness Professionals.

 

GDPR demystified for sole traders and small businesses: Part 1

Word Count: 2,456    Reading Time: 12 minutes

What is GDPR and does it apply to you?

The General Data Protection Regulation came into effect on May 25th 2018 and supersedes the Data Protection Directive 95/46/EC and the UK Data Protection Act 1998. It applies to all persons and businesses that collect and process personal data within the European Union (EU) and the European Economic Area (EEA).

Furthermore, it applies to data collectors and processors located outside the EU and EEA who do, or may handle personal data of EU citizens and data controllers. Therefore you could say that GDPR applies worldwide in the case of internet services and international trade.

The primary objectives of GDPR are to give control back to individuals of their personal data and to establish unified regulations within the EU for international trade, which in turn may lead to greater transparency in relation to personal data worldwide.

It is important to realise that GDPR does not only apply to data collected from websites, but also social media, email and other business processes such as paperwork, correspondence and accounts. It applies to all forms of personal data irrespective of what means of collection were used. While GDPR is obviously highly relevant to online data collection, its core principle is the protection of personal data in any format.

Many have expressed discontent with the regulations regarding them as an unnecessary layer of bureaucratic control over individual rights and trade. I understand this view but prefer the perspective that if all data collectors and processors worldwide adopted the key principles of GDPR, we would all benefit. This would lead more in the direction of a greater degree of data privacy we have not been afforded to date.

Word Count: 2,456    Reading Time: 12 minutes


 

What is GDPR and does it apply to you?

The General Data Protection Regulation came into effect on May 25th 2018 and supersedes the Data Protection Directive 95/46/EC and the UK Data Protection Act 1998. It applies to all persons and businesses that collect and process personal data within the European Union (EU) and the European Economic Area (EEA).

Furthermore, it applies to data collectors and processors located outside the EU and EEA who do, or may handle personal data of EU citizens and data controllers. Therefore you could say that GDPR applies worldwide in the case of internet services and international trade.

The primary objectives of GDPR are to give control back to individuals of their personal data and to establish unified regulations within the EU for international trade, which in turn may lead to greater transparency in relation to personal data worldwide.

It is important to realise that GDPR does not only apply to data collected from websites, but also social media, email and other business processes such as paperwork, correspondence and accounts. It applies to all forms of personal data irrespective of what means of collection were used. While GDPR is obviously highly relevant to online data collection, its core principle is the protection of personal data in any format.

Many have expressed discontent with the regulations regarding them as an unnecessary layer of bureaucratic control over individual rights and trade. I understand this view but prefer the perspective that if all data collectors and processors worldwide adopted the key principles of GDPR, we would all benefit. This would lead more in the direction of a greater degree of data privacy we have not been afforded to date.

What are the key principles of GDPR?

The most important principle is that individuals have complete control over their personal data and that their data is collected only with their explicit consent, rather than implied consent or without any consent. In addition, when collecting personal data it is essential to inform the individual who is collecting the data and for what purpose it is being used.

Simply put, you need an individual’s explicit consent to take any of their personal data and you must declare clearly who it is taking their data and for what purpose. This is at any point or step where you are requesting data, depending on your data processes and flow, you may need to gain explicit consent from the same individual more than once.

Explicit consent requires what the GDPR describes as a clear opt-in, not just an opt-out (especially as a default setting) or implied consent. If you are using pre-checked tick boxes or relying on someone pressing a send button without clearly explaining that data is being collected, for what purpose and by whom, then this is implied consent.

An opt-in is not the same as an opt-out, and is defined by GDPR as a mechanism provided for the individual to directly consent at each point of personal data collection, that is not pre-filled by default, and records their explicit opt-in consent for the data collection. Should it be requested by an individual or regulator, you must be able to demonstrate clearly the recording of the individual’s explicit consent to proceed with the data collection, at the time of collection.

Minimising personal data collection, storage and processing is another strong principle in GDPR. It requires us to evaluate how much personal data we do collect, what data is really necessary and how long data is required to provide our services and functionality to the individual. It is most important to know who we are sharing personal data with and if this is really necessary to provide services.

The aim should be to collect as little personal data as possible, only that which is essential to provide services, and collect no data at all, if possible. If you only need a first name or an email address to provide services, then take only that.

Article 25 of GDPR pertains to “data protection by design and by default”. Under GDPR organisations and businesses are strongly encouraged to design into their processes data privacy measures and safeguards from the very beginning. This is data protection by design.

Personal data should be processed with the highest level of privacy protection measures, by default. This means that only the minimum amount of data necessary should be collected and processed, with a short storage period and with limited accessibility. So that by default, personal data isn’t accessible to unauthorised data processors or any other third parties, without explicit consent of the individual. This is data protection by default.

What is Personal Data exactly?

As GDPR is all about protecting personal data, its important to understand what it is and that it includes data collected by automated and non-automated means. Unfortunately there is no definitive list of what is defined as personal data and what is not.

In reality, what constitutes personal data is subject to interpretation of the GDPR definition and how it applies in the context of the data collection, storage and processing.

Article 4(1) of GDPR defines “personal data” with clarification as follows:

‘Personal data’ means 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.

Adding complexity to defining what is personal data, it is important to understand that each byte of data may or may not be an identifier in itself, but may become so when combined with other bytes of data relevant to the individual. Context and setting may affect the definition of any/and/or all bytes of personal data, not least when data is involved in behavioural analysis, profiling and data breach incidents.

The clever folks over at BoxCryptor (a Cloud services company) put together a good list of identifiers from everyday life to demonstrate the potential complexity and accuracy that can be achieved in identifying an individual. Please note that this list is not exhaustive and does not include digital identifiers such as IP addresses and cookie identifiers;

  • Biographical information including date of birth, marital status, social security numbers, criminal record, phone numbers, email addresses, residential address and bank information.
  • Looks, appearance and behaviour, including hair and eye colour, height, weight and defining characteristics.
  • Workplace data and information about education, including salary, tax information and student numbers.
  • Private and subjective data, including photos, religion and political opinions.
  • Health, sickness and genetics, including medical history, genetic data and information about sick leave and fitness data.

What are the Rights of Individuals under GDPR?

Under GDPR individuals are granted certain rights that may greatly affect your business and online processes, as listed below with brief explanations;

  • The right to be informed: Individuals have the right to be informed about the collection and use of their personal data. Inform individuals of your purposes for processing their personal data, retention periods for that data, and who you share the data with. This is ‘privacy information’ and is the key transparency requirement of the GDPR.
  • The right of access: Individuals have the right to access their personal data and must be able to do so verbally or in writing, on or off-line. Requests to access personal data must be actioned within one month maximum, it is however advisable to action in the shortest time possible.
  • The right to rectification: The individual’s right to have inaccurate or incomplete personal data corrected and made complete. This right is linked to the data controller’s obligations under the accuracy principle of the GDPR (Article (5)(1)(d)). An individual must be able to request rectification verbally or in writing, on or off-line and must be actioned within one month maximum.
  • The right to erasure: The individual’s right to have personal data erased, commonly known as the right to be forgotten. An individual must be able to request erasure verbally or in writing, on or off-line and must be actioned within one month maximum. This right applies in certain circumstances only and is therefore not absolute.
  • The right to restrict processing: The individual’s right to request the restriction or suppression of their personal data. If processing is restricted you have the right to store it, but not use the data. An individual must be able to request restriction or suppression verbally or in writing, on or off-line and must be actioned within one month maximum. This right links to the right to rectification (Article 16) and the right to object (Article 21).
  • The right to data portability: The individual’s right to obtain and reuse their personal data for their purposes across different services and platforms. The individual must be able to move, copy or transfer personal data from one IT environment to another in a secure manner, without affecting data usability. This right only applies to information an individual has provided to a data controller. This right must be actioned within one month maximum, however this is extendable according to the nature and complexity of the data requested. In addition, such requests may be rejected under certain circumstances. Additional reading on this right is thus highly recommended.
  • The right to object: The individual’s right to object to the processing of their personal data in certain circumstances, and including the absolute right to stop their personal data being processed for direct marketing, on or off-line. Individuals must be informed of their right to object. An individual must be able to make an objection verbally or in writing, on or off-line and must be actioned within one month maximum. There are circumstances where data processing may continue despite an objection, if it can be demonstrated there is a compelling and legally justifiable reason for doing so.
  • Rights in relation to automated decision making and profiling: As described by Article 22 of GDPR, provisions for rights in the cases of:
    • Automated individual decision-making (making a decision solely by automated means without any human involvement); and
    • Profiling (automated processing of personal data to evaluate certain things about an individual). Profiling can be part of an automated decision-making process.
  • The GDPR applies to all automated individual decision-making and profiling processes and procedures. Solely automated decision-making that has legal or similarly significant effects on individuals has additional rules to protect individuals rights. Such decision making processes can only be conducted where the decision is:
    • Necessary for the entry into or performance of a contract; or
    • Authorised by Union or Member state law applicable to the controller; or
    • Based on the individual’s explicit consent.
  • It is essential to determine if any data processing falls under Article 22 and if so, ensure that:
    • Individuals are given information about the processing;
    • Provide simple mechanisms for individuals to request human intervention in the data processing, challenge or appeal a decision;
    • Conduct regular assessments to ensure systems described above are working as designed.

Are you a Data Controller or Processor?

 

As this article is for sole traders and SMEs only, in all likelihood you are a data controller, in that in the course of your business and online activities you are collecting, at the very least, individuals’ names and email addresses. The person or organisation collecting such data is a data controller, as defined in Article 4 of the GDPR;

‘Controller’ means 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.

In most cases a sole trader or SME will be collecting data, the processing of such data is most likely handled by a third party service provider such as Google or Mailchimp for example. The GDPR introduces, for the first time, direct obligations for data processors to data subjects or individuals.

This is why big players like Google, Paypal and Mailchimp (examples only) have been working to achieve GDPR compliance. They are now subject to regulatory penalties and civil claims by individuals pertaining to data processing and protection. Article 4 describes data processors;

‘Processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.

What is a Data Protection Officer and do I need one?

If you are a sole trader or SME, depending on the type of business activities, in all likelihood you do not need to appoint a Data Protection Officer (DPO). Most likely you need to designate a named data controller, possibly yourself. There are circumstances under which data processors and controllers must appoint a DPO, as described by Article 37(1):

(a) the processing is carried out by a public authority or body, except for courts acting in their judicial capacity;

(b) the core activities of the controller or the processor consist of processing operations which, by virtue of their nature, their scope and/or their purposes, require regular and systematic monitoring of data subjects on a large scale; or

(c) the core activities of the controller or the processor consist of processing on a large scale of special categories of data pursuant to Article 9 and personal data relating to criminal convictions and offences referred to in Article 10.

As most people reading this article are unlikely to need to appoint a DPO we won’t go down that rabbit hole!

Okay, so you made it this far, well done…that concludes Part 1.

In Part 2 we will delve deeper into the actual things you need to do as a sole trader and SME to your website(s) and other data collection mechanisms such as social media, email and mailing lists. We will also discuss some of the technical difficulties in complying with the GDPR for small operators.