In Part 1 we covered raising awareness, data audits and privacy notices. While in Part 2 we covered how GDPR deals with individuals’ rights including subject access requests and legal basis. In the last instalment, we reviewed consent, marketing to children and data breaches. The last three things to think about are data protection impact assessments, data protection officers and international considerations.
10. Data Protection Impact Assessments
It has always been best practice to take a privacy-by-design approach when developing your data capture and processing strategies, as well as a key part of any technology implementation. Privacy impact assessments are fundamental to this approach by giving marketers a useful tool to consider properly the privacy risks that their data processing entails. All the GDPR does here is make privacy by design an express legal requirement and makes PIAs (renamed in the regulations as Data Protection Impact Assessment or DPIA) a requirement under certain circumstances where the data processing is likely to result in high risk to the data subjects such as:
- where new technology is being deployed
- where a processing activity is likely to significantly impact individuals
- where there is large-scale processing on special categories of data
For most marketers, it will be the first two circumstances that will be most likely to trigger a DPIA but it is important to know the special categories of data if appropriate in the future.
In many if not most situations, the DPIA will indicate that the processing of the data is not high risk or if it is high risk, you will be able to address those risks. If you cannot mitigate the risk, you should contact the ICO for guidance on whether processing the data will comply with GDPR.
If you haven’t already, you should start to asses if any DPIAs are warranted within your organisation, who will lead them and who else needs to be involved. There is great guidance published by both the UK ICO and the Article 29 Working Party on DPIAs and privacy by design.
11. Data Protection Officers
US President Harry S. Truman had a sign on his desk that read “the buck stops here.” It was his assurance that he was ultimately responsible for how the government operated under his administration. Historically when it comes to data, the buck has not stopped anywhere due to the way that the collection and processing of data has grown organically within businesses and other organisations. I was speaking with one head of CRM recently who told me of the over 80 marketing databases that they currently have. It is going to come down to this CRM manager to get all of that data into a single place.
Every organisation should designate someone to “take the data buck” – to be ultimately responsible for data privacy and compliance. You should also have a think about where this role of Data Protection Officer (DPO) sits within the organisation and overall governance structures so that the person in this role has the freedom to act, should the need arise. In many instances, the GDPR has overcome this by specifying situations where a DPO is required such as:
- public authorities
- organisations that carry out large scale, regular and systematic monitoring of individuals
- organisations that carry out large scale processing of special categories of data
Whomever the designated DPO, it is important that they have the knowledge, support and authority to carry out their role effectively. The article 29 working party has some good guidance on roles and responsibilities of a DPO.
12. International Considerations
The first thing to remember here is that Brexit will have little to no impact on GDPR. The government has confirmed on multiple occasions including as recently as the Queen’s Speech on 21st of June 2017, that GDPR will be the data protection law in the UK going forward. Moreover, the UK will still be an EU member when the law goes into effect on the 25th of May 2018.
If you operate in multiple EU member states, then you should determine which would be your lead data regulator. This is not meant to be a way to be under the auspices of the most favourable regulator. Your lead regulator should be the state where your central administration in the EU is based or the location where decisions about your data processing are taken. You can do this by mapping out where you take your data processing decisions and the country with the preponderance of those decisions is the one you should choose. If on the other hand you are not engaged in any cross border data processing, then your decision here is quite straightforward. Once again, the Article 29 Working Party has produced some guidance that will help you make the correct decision.
As I said at the beginning of part 1, data recently released by the DMA indicates that marketers are feeling less prepared for GDPR than they did in February. Marketers are also feeling less knowledgeable about GDPR in general and their four big concerns are:
- Legacy Data
- Implementing a compliant system
I hope that this blog series has gone a little way to making you feel more prepared or at least has given you some things to think about and some things to start discussing internally. Over the coming weeks and months, dotmailer will be publishing useful guidance from recognised sources geared towards email marketers. Our approach is to keep our readers up to speed based on facts directly from this reputable guidance or vetted by the UK or other data regulators around Europe. In addition, our teams will be ready to help you implement the advice you receive from your professional advisors within the dotmailer environment.