Plan a Pragmatic Approach to the new EU Data Privacy Regulation
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1 AmChamDenmark event: EU Compliant & Cyber Resistant Plan a Pragmatic Approach to the new EU Data Privacy Regulation Janus Friis Bindslev, Partner Cyber Risk Services, Deloitte 4 February 2016
2 Agenda General Data Protection Regulation (GDPR) Safe Harbor vs. EU-U.S. Privacy Shield Suggested Next Steps (What do we do now?) Q&A 2
3 Definitions US - EU Safe Harbor Framework EU Directive on Data Protection went into effect in October of Prohibited the transfer of personal data to non-european Union countries that did not meet EU requirements (US being one of those) Safe Harbor Framework, which was approved by the EU in 2000, provided a selfcertification method for US organizations to meet European requirements General Data Protection Regulation (GDPR) A new regulation that replaces the European Directive Text agreed, to be voted on Q2 2016, in force Q Significantly increases prescriptive requirements for businesses that process the personal data of European citizens 3
4 General Data Protection Regulation (GDPR)
5 Privacy legislation a complex patchwork that is evolving quickly Safe Harbor invalidated by the EU Court of Justice 6 October 2015 EU Trilogue agreed to the final text of the new GDPR 15 December 2015 Game changers in the execution of corporate privacy programs Will require significant efforts to demonstrate compliance Potential for far-reaching impacts 5
6 The new GDPR Will replace European Directive 95/46/EC Final vote of the European Parliament expected Q Harmonizes EU Data Protection Law Provides for a two year and twenty day implementation time period Enhances the rights of individuals Allows Member States to retain the ability to introduce additional derogations for data processing and implementation of effective controls Some Member States are already modifying their laws to match the GDPR provisions 6
7 Data protection officers and accountability Data Protection Officer Mandatory for: Public authorities Regular and systematic monitoring on a large scale Processing sensitive personal data on a large scale If required by a Member State in its national law Specific requirements: Must be sufficiently independent Must have professional qualities Accountability Demonstrate compliance by: Adopting adequate controls to enforce policies and procedures Keeping records of processing taking place Conducting PIAs and if required consult DPA Organize training and awareness sessions Reviewing privacy compliance (e.g., audits) 7
8 Demonstrating effective compliance Privacy by design Consider privacy at start of process Account for entire data lifecycle Consider context Define and implement privacy enhancing controls Right to be forgotten Privacy impact assessment (PIA) Prior to processing High-risk / sensitive data / systematic / large-scale Description, assessment, measures taken Privacy by default Adopt privacy friendly settings (e.g., no preticked box) Minimum storage time & volume Strictly necessary purposes only 8
9 Enforcement fines and lead DPA Administrative fines of up to: 2-4% of worldwide turnover or up to a maximum of million EUR Lead DPA Main Establishment Controller / Processor Location of the central administration in the EU If more than one DPA has an interest, one of those will be appointed lead DPA based on the location of the organization's main EU establishment Disputes between DPAs to be handled by the European Data Protection Board 9
10 Data breach notification 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 No risk to individual rights and freedoms - internal records must be kept Some risk - the DPA must be notified within 72 hours High risk - the DPA and data subjects must be notified without undue delay 10
11 Safe Harbor vs. EU-U.S. Privacy Shield
12 EU-U.S. Privacy Shield will now replace Safe Harbor What will change? New framework will: Move away from a self-regulatory approach with increased oversight, enforcement, and sanctions Increase role of European national data protection authorities Main headlines: Strong obligations on companies enforceable under U.S. law and will have to commit to comply with decisions by European DPAs. Clear safeguards and transparency obligations on U.S. government access no mass surveillance on the personal data transferred to the US under the new arrangement Effective protection of EU citizens' rights several redress possibilities for citizens including a new Ombudsperson. What have other organizations been doing? Many companies have been implementing Model Contract Clauses for both internal data transfers and agreements with data processers Cloud operators increasing data center locations in Europe 12
13 GDPR and EU-U.S. Privacy Shield What should we do now? 13
14 GDPR and EU-U.S. Privacy Shield Planning the pragmatic approach Do Not Panic - Identify and empower an individual within your organization to be the contact point (internal, external, regulatory) on Privacy Shield and GDPR to monitor, report and plan for changing legal obligations and establish consistent messaging. - Gather existing documentation on data processing operations, including data transfers, to evaluate risk exposure and prepare for potential inquiries from DPAs, clients or employees. Evaluate - Develop an inventory of systems, controls, and procedures to understand where personal data are processed and which specific controls (e.g., data usage) exist. - Assess available cross border transfer methods and select the method(s) that meet the requirements of your organization. - Assess your current state (e.g., compliance with existing and new GDPR requirements, data processing registrations, third party sharing). Address - Communicate regulatory changes and their potential impact to senior stakeholders to raise awareness and obtain senior-level support. - Develop and implement a risk based remediation strategy and roadmap including a short term tactical plan focusing on quick wins. - Develop and execute a Works Council and DPA communications plan. 14
15 10 steps to being prepared on a single page 1 Data classification in the core business data flow analysis Where exactly is the personal data? Privacy impact 3 assessment as part of the risk assessment 5 Identification, description and implementation of security controls Policies 2 4 Program on the use of personal information and privacy on awareness Planning of the 6 role as data protection officer Program for 8 notification of security breaches and security incidents 10 Opportunities to use Privacy Enhancing Technologies PET privacy by design 7 Program 9 Program on management of data subjects rights on audit and control But first of all be compliant with current applicable law Complete a GAP analysis. 15
16 Q&A
17 About Deloitte Deloitte provides audit, tax, consulting, and financial advisory services to public and private clients spanning multiple industries. With a globally connected network of member firms in more than 150 countries, Deloitte brings world-class capabilities and high-quality service to clients, delivering the insights they need to address their most complex business challenges. Deloitte has in the region of 225,000 professionals, all committed to becoming the standard of excellence. Deloitte Touche Tohmatsu Limited Deloitte refers to one or more of Deloitte Touche Tohmatsu Limited, a UK private company limited by guarantee, and its network of member firms, each of which is a legally separate and independent entity. Please see for a detailed description of the legal structure of Deloitte Touche Tohmatsu Limited and its member firms.
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