Today marks one year to go until the General Data Protection Regulation applies in UK law, along with all other EU Member States. Rob Luke, Deputy Commissioner at the Information Commissioner's Office spoke today at techUK's 'Will GDPR Change the World' event on how GDPR will affect organisations in the years to come.
"Let me take a moment to thank techUK for putting together this event and for offering me the platform to speak with you this morning.
Our Commissioner, Elizabeth Denham, has been clear that the ICO’s vision – of increasing data trust and confidence among the UK public – can only be achieved by working in partnership with the private, public and third sectors.
An important part of that is developing key relationships with representative or umbrella organisations as multipliers and amplifiers for our engagement with different constituencies. Helping us reach new or hard-to-reach audiences.
Our strong relationship with techUK is a great example of that partnership approach.
We appreciate the role you play in bringing together representatives from across the sector and your ongoing constructive dialogue with us around issues of importance to your members and the sector as a whole.
I’m glad to have the opportunity to continue that dialogue this morning.
Will GDPR change the world?
Will the General Data Protection Regulation change the world?
Wow, what a question. On the face of it, even the most ardent data protection advocate would struggle to make a case that a blandly titled piece of European legislation deserves that billing.
So despite my professional obligation to emphasise the importance of data protection in the digital age, I am not going to make the argument for the world revolving around GDPR.
What I will try to do is highlight some of the opportunities and challenges GDPR brings for organisations.
Ultimately, of course, GDPR is an indicator of change as much as it is an instigator. And no sector is more relevant to that rapidly changing landscape than yours.
GDPR is part of the response to the challenge of upholding information rights in the digital age. Of protecting the rights and interests of the individual in the context of an explosion in the quantity and use of data and in an environment of extremely rapid technological change.
So I feel it is particularly relevant to mark One Year To Go in dialogue with the tech sector in particular.
I should be clear early on that this is not a speech about Brexit or an exploration of the UK’s possible post-Brexit data protection framework.
In a pre-election period, and with the need to adhere to the guidance on purdah, I hope you will understand that I am not in a position to speculate about the post-Brexit environment, nor indeed to comment on proposals in political party manifestos.
I apologise in advance if there are questions, or elements of the panel discussion, where I am limited by the caution that purdah requires.
What we can safely say however, is that one way or another, GDPR is going to be an important part of the global data protection landscape over the years ahead, with great relevance to UK organisations, the public and their data.
Fit for the digital age
The moment at which GDPR takes effect in the UK on 25 May 2018 will of course mark a change. In delivering legislation fit for the digital age GDPR confers new rights and responsibilities and organisations need to be working now to prepare for them.
I assume that this audience has a familiarity with the core features of GDPR and the key requirements it places on organisations. I hope you have already deployed our ’12 steps to take now’ guidance and our ‘Overview to GDPR’ and that you are drawing on our wider resources.
One consistent feature of our outreach with organisations is a high demand for granular guidance – often people will say to us: “tell us what we need to do”.
We are working at pace to produce detailed guidance, both at national level but also European level guidance produced by the Article 29 EU Working Party to which we are making a major contribution.
I will flag up some particular pieces of guidance in a minute, and the pipeline of guidance will continue to flow.
But I urge you not to wait, nor to take a reactive approach to your GDPR preparations, motivated solely by a mindset of compliance or risk management.
Those organisations which thrive under GDPR will be those who recognise that the key feature of GDPR is to put the individual at the heart of data protection law.
Thinking first about how people want their data handled and then using those principles to underpin how you go about preparing for GDPR means you won’t go far wrong.
Transparency and accountability
It can be boiled down to two words: “transparency” and “accountability”.
Being clear with individuals how their personal data is being used.
And placing the highest standards of data protection at the heart of how you do business.
An issue for the boardroom
That means this is an issue for board level, whatever the size of your business.
Not least because under GDPR the regulator wields a bigger stick. For the most serious violations of the law, the ICO will have the power to fine companies up to twenty million Euros or four per cent of a company’s total annual worldwide turnover for the preceding year.
And as we’ve seen in well-publicised examples the cost to business of poor practice in this area goes above and beyond any fine we can impose. Losing your consumers’ trust could be terminal for your reputation and for your organisation.
We would all prefer a win-win outcome. A model where organisations take an approach to data protection which earns the trust of consumers in a more systematic way. And where that trust translates into competitive advantage for those who lead the charge.
Nowhere does that feel more relevant than for your sector.
GDPR and the tech sector
The UK tech industry is at the forefront of our vibrant digital economy, changing how we live our lives and offering huge potential for positive change and wide social benefit.
Data is the fuel that powers that economy and tech companies are involved at every level.
GDPR is a response to this evolving landscape, building on previous legislation but bringing a 21st century approach and delivering stronger rights in response to the heightened risks.
The right of an individual to be informed about use of their data; their right to access their information and move that information around; the right of rectification and erasure of data where appropriate; the right to remove consent; and the right to enable automated decisions to be challenged.
Good practice tools that the ICO has championed for a long time - such as privacy impact assessments and ensuring privacy by design - are now legally required in certain circumstances.
The ICO covers privacy impact assessments in its existing Privacy by Design guidance and the European Article 29 Working Party has also issued draft guidelines.
Being transparent and providing accessible information to individuals about how you will use their personal data is another key element of the new law and our privacy notices code of practice is GDPR-ready.
Increased responsibilities for data processors are another feature. Data processors, companies using personal data on behalf of others, will have specific legal obligations to maintain records of personal data and processing activities.
Data breach reporting will also change under the GDPR. You’ll be obliged to notify the ICO, within 72 hours, of a breach where it is likely to result in a risk to the rights and freedoms of individuals.
The widespread availability of personal data on the internet and advances in technology, coupled with the capabilities of big data analytics mean that profiling is becoming a much wider issue.
People have legitimate concerns about surveillance, discrimination and the use of their data without consent.
Data protection can be challenging in a big data context and some types of big data analytics, such as profiling, can be intrusive.
We explore many of these issues in detail in our recently updated paper on big data, artificial intelligence, machine learning and data protection.
We’ve also recently published a consultation paper on profiling under GDPR to which techUK has responded. We’ll be using this to feed into the European Article 29 Working Party guidelines.
Harnessing the benefits of big data, AI and machine learning, as it relates to healthcare for example, will be sustained by upholding the key data protection principles and safeguards set out in GDPR.
Whilst the means by which personal data is processed are changing, the underlying issues remain the same. Are people being treated fairly? Are decisions accurate and free from bias? Is there a legal basis for the processing? These will remain key questions for us as a regulator under GDPR as they have been under the DPA.
The GDPR is a principles based law well equipped to take on the challenges of 21st century technology.
It aims to be flexible – protecting individuals from harm while enabling you to innovate and develop services that consumers and businesses want.
As data becomes the fuel powering the modern economy, so it becomes a key element of many of the debates in modern society.
Take the announcement last week by Elizabeth Denham of her opening of a formal investigation into the use of data analytics for political purposes.
Given the big data revolution I have mentioned it is understandable that political campaigns are exploring the potential of advanced data analysis tools to help win votes. The public have the right to expect that this takes place in accordance with the law as it relates to data protection and electronic marketing.
This is a complex and rapidly evolving area of activity and the level of awareness among the public about how data analytics works, and how their personal data is collected, shared and used through such tools, is low.
What is clear is that these tools have a significant potential impact on individuals’ privacy. It is important that there is greater and genuine transparency about the use of such techniques to ensure that people have control over their own data and the law is upheld.
We will provide an update on that investigation later in the year.
Rising to the challenge
I’ve talked about some of the challenges and opportunities GDPR brings for organisations. Likewise it is a moment for us at the ICO to reflect on how we do our work.
Clearly there are practical aspects such as preparing for a higher volume of activity given enhanced breach notification requirements.
But we are thinking more widely than that.
One example, again with particular relevance for the tech sector, is how we might be able to engage more deeply with companies as they seek to implement privacy by design.
How we can contribute to a “safe space” where companies can test their ideas. How we can better recognise the circular rather than linear nature of the design process.
Separate but related we need to become more comfortable about recognising good practice and drawing on exemplars.
We should be able to find ways to give credit where credit is due without that translating into a free pass for an individual organisation or practice. GDPR explicitly foresees wider use of tools such as codes of conduct and certification schemes, which potentially have an important role to play.
To deliver on the above and more broadly we also need to build our own tech know-how and capability. We are working on a new Technology Strategy which will outline our means of adapting to rapid technological change as it impacts information rights.
We are also committed to exploring innovative and technologically agile ways of protecting privacy.
And of course we need to exercise global reach and influence. Effective protection of the UK public’s personal information becomes increasingly complex as data flows across borders.
The ICO will continue to develop and deepen effective relationships with our international partners, reacting to changes in the global regulatory environment.
These goals among others feature in our new Information Rights Strategic Plan, being launched today by Elizabeth Denham, which sets out the ICO’s plan for the coming four years.
The tech sector will be a priority for our engagement as we look to seize these opportunities set out in the strategy.
With 12 months to go until GDPR takes effect in the UK, I hope I have offered a brief insight into some of the implications and impacts of GDPR on UK businesses.
I hope I have also signposted key actions you should be taking and key tools on which you can draw to rise to the challenge.
GDPR brings big changes, important changes. But GDPR is an evolution of the existing rules, not a revolution.
And as I said at the outset it is also a mirror of the changes in the practices and environment it seeks to regulate.
It is not GDPR which is pushing data protection up the public, political and media agenda. It is the changing nature of the world in which we live, and the ubiquity of data, which is causing society to reflect on the consequences for our personal information and for privacy itself.
You are at the heart of that change. Your response to the challenges and opportunities of GDPR will set a marker for other sectors.
You have a major stake in the enterprise of increasing data trust and confidence among the UK public. By putting the individual in genuine control of their own data you can help achieve that goal, delivering benefits for your consumers, your business and society as a whole.
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