Data Protection / GDPR

The General Data Protection Regulation, commonly known simply as the GDPR represents a significant modernisation of data protection law and one that takes into account significant new developments in technology and new uses of personal data that simply did not exist at the time of the current (until May 2018 that is) legislation, the Data Protection Act 1998.

The GDPR brings with it a number of changes and improvements to data protection law including:

  • Enhanced documentation and record-keeping requirements;
  • Enhanced privacy notice (or “fair processing notice”) requirements;
  • Stricter rules on consent to data processing;
  • A new mandatory requirement to notify the ICO (and data subjects in certain cases) of a data breach;
  • Enhanced rights for data subjects;
  • New obligations for data processors;
  • New rules requiring the appointment of Data Protection Officers; and
  • New, tougher penalties for failure to comply with the law.

In addition to these headline changes, the all-important definition of “personal data” – the key subject matter of all data protection law – has expanded considerably. Under the GDPR, 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.

The definition of “personal data” under the GDPR is much wider than that under the Data Protection Act and now includes widely-used data such as IP addresses. In some cases, even data that has been pseudonymised (key-coded, for example) can still qualify if the pseudonym can be tied to a particular person.

The core principles of the GDPR set out the central responsibilities for organisations. Personal data shall be:

a) processed lawfully, fairly and in a transparent manner in relation to individuals;

b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial purposes;

c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed;

d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay;

e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes subject to implementation of the appropriate technical and organisational measures required by the GDPR in order to safeguard the rights and freedoms of individuals; and

f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.

Most importantly for the purposes of the data protection audit and these guidance notes is the following statement contained in Article 5(2) of the GDPR:

“the controller shall be responsible for, and be able to demonstrate, compliance with the principles.”

An essential starting point in complying with the GDPR, and being able to demonstrate that compliance, is a data protection audit, assessing the current state of play within your business, determining the degree to which your current practices align with the requirements set down in the GDPR, and identifying areas for improvement.

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