this is very good

1. The EU General Data Protection
Regulation (GDPR)
If you cannot hear us speaking, please make sure you have called into the teleconference
number on your invite information.
 UK participants: 0800 279 5994
 Outside the UK: +44 (0) 1452 584 233
 Event Code: 585 479 55
The audio portion is available via conference call. It is not broadcast through your computer.
*This webinar is offered for informational purposes only, and the content should not be construed as legal advice on any matter.
Tuesday, December 22, 2015
15:00pm GMT / 16:00pm CET / 10:00am EST
WELCOME TO OUR WEBINAR

2. 2
Welcome
 You are on mute
 A link to a recording of the webinar will be made available
Today's speakers
December 22, 2015
Carol Umhoefer
Partner, DLA Piper
Paris
firstname.lastname@dlapiper.com or
dataprivacy@dlapiper.com
Giangacomo Olivi
Partner, DLA Piper
Milano
EU General Data Protection Regulation 2
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Patrick van Eecke
Partner, DLA Piper
Brussels

3. The GDPR in 20 Questions

4. 1. Why all the buzz around the EU
General Data Protection Regulation?
 One law, directly applicable in all 28 Member States.
 Replaces the 1995 Data Protection Directive and the
national laws transposing the Directive.
 Will apply from 2018 – national laws apply until then.
 Big picture implications: Will the EU continue to lead the
way in personal data protection?
December 22, 2015
EU General Data Protection Regulation 4
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Carol Umhoefer
Partner, DLA Piper
Paris

5. 2. Has it been adopted now? Are
these really the final rules?
 Last week
 17 December: EP LIBE endorsed the texts agreed in the trilogues.
 18 December: COREPER confirmed the final compromise texts.
 Next weeks
 Early 2016: Legal-linguistic review of the texts
 Early 2016: Adoption by the Council
 Early 2016: Adoption by the Parliament
 Spring 2016
 Publication in Official Journal
 20 days after publication: enter into force
 2016-2017
 Delegated acts/implementing acts
 Spring 2018
 Application of the rules
December 22, 2015
EU General Data Protection Regulation 5
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Patrick van Eecke
Partner, DLA Piper
Brussels

6. 3. To whom does it apply?
 Processing of personal data in the context of the activities of an
establishment of a controller or a processor in the Union,
regardless of whether the processing itself takes place within the
EU.
 Processing of personal data of data subjects who are in the Union
by a controller or processor not established in the Union where
the processing activities are related to the offering of goods or
services to data subjects in the European Union irrespective of
whether a payment of the data subject is required, or related to the
monitoring of the behaviour of such data subjects as far as their
behaviour takes place within the EU.
December 22, 2015
EU General Data Protection Regulation 6
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Giangacomo Olivi
Partner, DLA Piper
Milan

7. 4. Do the principles stay the same or
are we starting over?
 Personal data must be processed lawfully, fairly and in a
transparent manner.
 Personal data must be processed for specified, explicit and
legitimate purposes and not further processed in an incompatible
way.
 Personal data must be adequate, relevant and limited to what is
necessary in relation to the purposes.
 Personal data must be accurate and where necessary kept up to
date.
 Personal data must be kept in a form that permits identification of
data subjects for no longer than necessary for the purposes.
 Personal data must be processed in a way that ensures appropriate
security using appropriate technical or organizational measures.
And a new principle: The controller shall be responsible for and be able
to demonstrate compliance with the principles.
December 22, 2015
EU General Data Protection Regulation 7
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Carol Umhoefer
Partner, DLA Piper
Paris

8. 5. How large are the fines likely to be?
 Graduated approach – up to 4% worldwide turnover maximum.
 Due regard is to be given to:
 the nature, gravity and duration of the infringement;
 the intentional character of the infringement;
 actions taken to mitigate the damage suffered;
 degree of responsibility (e.g. data protection by design or by
default) or any relevant previous infringements;
 cooperation with the supervisory authority (and the manner
in which supervisory authority learned of infringement);
 categories of personal data affected;
 compliance with measures ordered;
 adherence to a code of conduct (or certification mechanism);
 other aggravating or mitigating factors (e.g. financial
benefits, etc.)
December 22, 2015
EU General Data Protection Regulation 8
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Giangiacomo
Olivi
Partner, DLA Piper
Milan

9. 6. Will international transfer
mechanisms be affected?
 Same philosophy as before i.e. only under very strict conditions:
 Adequacy decisions by Commission.
 Appropriate safeguards, such as:
 Binding corporate rules;
 Standard data protection clauses adopted by the
Commission or by a supervisory authority or contractual
clauses authorised by a supervisory authority;
 Derogations: Explicit consent/necessary for performance of
the agreement/…
 What about legal disclosure obligations?
 "Any judgment of a court or tribunal and any decision of an
administrative authority of a third country requiring a
controller or processor to transfer or disclose personal data
may only be recognised or enforceable in any manner if
based on an international agreement, such as a mutual legal
assistance treaty."
December 22, 2015
EU General Data Protection Regulation 9
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Patrick van Eecke
Partner, DLA Piper
Brussels

10. 7. Will we need to appoint a DPO or
not?
 Yes and No! - DPO to be designated when the core activities of
the controller / processor:
 require regular and systematic monitoring of data subjects
on a large scale;
 consists of processing on a large scale of "special categories
of data" (Art. 9) or data relating to criminal convictions.
 A group of undertaking may appoint a single DPO.
 A DPO may be a staff member or a consultant (service
contract), to report to the highest management level.
 Tasks include:
 inform and advise the controller / processor (and employees)
of their obligations;
 monitor compliance with the GDPR;
 advise on data protection impact assessment;
 cooperate with the supervisory authority (including acting as
point of contact).
December 22, 2015
EU General Data Protection Regulation 10
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Giangiacomo
Olivi
Partner, DLA Piper
Milan

11. 8. How will one-stop-shop change our
compliance program?
 One-stop-shop relevant to interactions with supervisory
authorities in relation to cross-border processing.
 Definition of cross-border processing could be clarified,
even if the intent is clear.
 With respect to its cross-border processing, the controller
or processor will deal only with its lead supervisory
authority.
 Exceptions may apply – for example, issues arising in a
single Member State; employee data processing; health-
care data processing.
December 22, 2015
EU General Data Protection Regulation 11
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Carol Umhoefer
Partner, DLA Piper
Paris

12. 9. What will we need to do in case of a
data breach?
 Notification to the supervisory authority without undue delay and
where feasible no more than 72 hours, unless the personal data
breach is unlikely to result in a risk for the rights and freedoms of
individuals.
 Reasoned justification in case breach is not notified within 72
hours.
 Data subjects shall be notified without undue delay if the
breach is likely to result in a high risk for the rights and freedoms of
individuals to allow them to take the necessary precautions.
 Communication to the data subject is not required if the controller:
 implemented appropriate technical and organization
measures to that rendered the data affected unintelligible (e.g.
encryption);
 took subsequent measures to ensure that the high risks are
no longer likely to materialise;
 if it causes disproportionate effort.
December 22, 2015
EU General Data Protection Regulation 12
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Giangiacomo
Olivi
Partner, DLA Piper
Milan

13. 10. Can we still process personal data
on the basis of consent?
 Yes, but:
 consent should be freely given, specific, informed and
unambiguous;
 by a statement or clear affirmative action;
 Controller has burden of proof.
 In practice:
 ticking a box, choosing technical settings, or conduct
clearly indicating acceptance of proposed processing.
 Silence, pre-ticked boxes or inactivity should not
constitute consent.
 Contract performance cannot be made conditional to
consent, if processing is not necessary.
December 22, 2015
EU General Data Protection Regulation 13
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Patrick van Eecke
Partner, DLA Piper
Brussels

14. 11. Can we still process personal data
on the basis of legitimate interests?
 Yes – with some changes:
 Obligation to specifically inform data subjects.
 Data subject entitled to require restriction of processing of
his/her data while verifying if fundamental rights don't
override legitimate interests.
 Reasonable expectations of data subjects should be given
consideration, such as when a data subject is a client or in
the service of the controller.
 Examples: Preventing fraud; ensuring network and
information security.
 Direct marketing purposes may be regarded as carried out
for a legitimate interest?
December 22, 2015
EU General Data Protection Regulation 14
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Carol Umhoefer
Partner, DLA Piper
Paris

15. 12. Will data collection from kids
become illegal?
 No - General principles of lawfulness of processing (Art. 6)
shall apply.
 Processing of personal data of a child below the age of
16 years requires the consent (given or authorized) by
the parent (or other holder of parental responsibility).
 Member States can lower the age threshold (but not below
13 years).
 The controller shall make reasonable efforts to verify that
consent is given or authorized by the holder of parental
responsibility over the child.
 Rules to consider available technology and not to affect
general contract law.
December 22, 2015
EU General Data Protection Regulation 15
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Giangiacomo
Olivi
Partner, DLA Piper
Milan

16. 13. Will individuals get new rights?
 Yes – several new and expanded rights.
 Data portability.
 Restriction of processing.
 Expanded right of erasure - the Right To Be Forgotten.
 Rights regarding profiling: using data to evaluate certain personal
aspects relating to a natural person, in particular to analyse or
predict aspects concerning that person's performance at work,
economic situation, health, personal preferences, interest,
reliability, behaviour, location or movements.
December 22, 2015
EU General Data Protection Regulation 16
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Carol Umhoefer
Partner, DLA Piper
Paris

17. 14. Will we get new types of sensitive
data?
 General rule - prohibition to process personal data,
revealing:
 racial or ethnic origin, political opinions, religious or
philosophical beliefs, trade-union membership, genetic data,
biometric data in order to uniquely identify a person or data
concerning health or sex life and sexual orientation.
 But 10 exceptions apply:
 explicit consent
 vital interest
 assessment of the working capacity of the employee
 public health, …
 Pay attention!
 Member States may maintain or introduce further conditions,
including limitations, with regard to the processing of genetic
data, biometric data or health data.
December 22, 2015
EU General Data Protection Regulation 17
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Patrick van Eecke
Partner, DLA Piper
Brussels

18. 15. Does the Regulation still apply if
we de-identify our data?
 Information that does not relate to an identified or
identifiable natural person, or data rendered anonymous in
such a way that the data subject is not or no longer
identifiable, will not be subject to the Regulation.
 Data that has undergone pseudonymisation, which could
be attributed to a natural person by the use of additional
information, is personal data subject to the Regulation.
 To determine whether a person is identifiable, account
should be taken of all the means reasonably likely to be
used, looking at all objective factors, such as the costs and
amount of time required, available technology at the time of
the processing, and technological developments.
December 22, 2015
EU General Data Protection Regulation 18
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Carol Umhoefer
Partner, DLA Piper
Paris

19. 16. When will we need to conduct a
privacy impact assessment?
 When using new technologies and likely to result in a risk
for the rights and freedoms of individuals. In particular:
 systematic and extensive evaluation of personal
aspects based on automated processing (including
profiling) and on which decisions are made, significantly
affecting the individual.
 large scale processing of "special categories of
data" or criminal data.
 systematic monitoring of a publicly accessible area
on a large scale.
 A single assessment may address a set of similar
processing operations with similar risks.
 Supervisory authority to publish a list of operations subject
(and not subject) to data protection impact assessment.
 Assessment review when risk changes.
December 22, 2015
EU General Data Protection Regulation 19
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Giangiacomo
Olivi
Partner, DLA Piper
Milan

20. 17. We've always acted as a
processor – what will our liability be?
 Direct claims: data subject can lodge a complaint directly against
a P (administrative as well as judicial).
 Qualified liability: A P shall be liable for the damage caused by
the processing only where it has not complied with obligations of
this Regulation specifically directed to Ps or acted outside or
contrary to lawful instructions of the C.
 Burden of proof: A C or P shall be exempted from liability if it
proves that it is not in any way responsible for the event giving rise
to the damage.
 Joint and several liability: Where more than one C or P are
involved in the same processing and, where they are responsible
for any damage caused by the processing, each shall be held
liable for the entire damage, in order to ensure effective
compensation of the data subject.
 Liable for sub-processors: Where that other P fails to fulfil its
data protection obligations, the initial P shall remain fully liable to
the C for the performance of that other processor's obligations.
December 22, 2015
EU General Data Protection Regulation 20
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Patrick van Eecke
Partner, DLA Piper
Brussels

21. 18. Is it true the G29 will be
dissolved?
 An independent body of the Union with legal personality –
the European Data Protection Board – will be
established.
 Will replace the Article 29 Working Party.
 Composed of the head of a supervisory authority in each
Member State and the European Data Protection
Supervisor or their respective representatives.
 Contribute to the consistent application of the GDPR.
 Empowered to issue binding decisions.
 Decisions subject to action for annulment before the Court
of Justice of the European Union.
December 22, 2015
EU General Data Protection Regulation 21
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Carol Umhoefer
Partner, DLA Piper
Paris

22. 19. Will the regulators be issuing
guidelines or recommendations?
 The Commission will be granted implementing powers.
 Implementing acts:
 approved codes of conduct;
 technical standards for certification mechanisms and
data protection seals and marks;
 third country adequacy decisions;
 format and procedures for the exchange of
information between stakeholders for BCRs.
 Delegated acts:
 information to be presented by the icons;
 procedures for providing standardised icons;
 requirements for the data protection certification
mechanisms.
December 22, 2015
EU General Data Protection Regulation 22
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Patrick van Eecke
Partner, DLA Piper
Brussels

23. 20. How far does harmonization really
go?
 Member State law should reconcile rules governing
freedom of expression and information with the
protection of personal data.
 Member State law or collective agreements may provide for
specific rules on employee personal data processing, for
example, conditions under which data can be processed on
the basis of employee consent.
 Member States may adopt specific rules if necessary to
reconcile the right to the protection of personal data with an
obligation of professional secrecy.
 Member States may maintain or introduce more specific
requirements for processing pursuant to legal
obligations under Member State's law.
December 22, 2015
EU General Data Protection Regulation 23
CURRENTLY SPEAKING
CURRENTLY SPEAKING
Giangiacomo
Olivi
Partner, DLA Piper
Milan

24. Stay Informed
24
December 22, 2015
EU General Data Protection Regulation
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25. QUESTIONS
December 22, 2015
EU General Data Protection Regulation 25
dataprivacy@dlapiper.com www.dlapiperdataprotection.com

26. Enjoy your holidays!