GDPR vs. UK-GDPR; the Laws Post Brexit

The General Data Protection Regulation (GDPR) is a regulation in EU law that was implemented on the 25^{th of} May 2018 and concentrates on data protection and confidentiality in the European Union and the European Economic Area; alongside this, the GDPR is also used to address the transmission of personal data outside the EU and EEA areas. The EU Commission announced on 28 June 2021 that adequacy judgments for the UK have been passed, so what does that mean for the GDPR rules?

The Brexit transition phase concluded on the 31^{st of} December 2020 and as a component of the new trade agreement, the EU has come to an agreement to postpone the transmission limitations for at least four months, which can then be stretched out to six months (recognised as the bridge). The European Commission published its draft decisions on the 19^th of February 2021  regarding the UK’s adequacy under the EU’s General Data Protection Regulation (EU GDPR) and Law Enforcement Directive (LED). In both cases, the European Commission has found the UK to be adequate which implies that much of the data can resume the stream from the EU and the EEA devoid of the need for supplementary precautions. Nevertheless, it is vital to take note of the fundamental reality that the adequacy decisions do not cover data conveyed to the UK for the principles of immigration control, or where the UK immigration immunity is appropriate. For this nature of data, distinct regulations are employed, and the EEA dispatcher wants to set other transfer safeguards in place. September 2021 saw WhatsApp being handed the second highest fine under EU GDPR (General Data Protection Regulation) rules and the biggest fine ever from the Irish Data Protection Commission due to their lack of understanding towards the new GDPR laws – had they done their due diligence, they may have been able to avert such a hefty fine. Our Due diligence 360° services provide the specialised intelligence needed by global financial institutions and multinational corporations to guarantee complete compliance with anti-money laundering (AML) regulations and legislations.

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The draft decisions will at this point be deemed by the European Data Protection Board (EDPB) and a committee of the 27 EU Member Governments.  If the committee accepts the draft decisions, then the European Commission can formally adopt them as legal adequacy decisions.  If adequacy decisions are not implemented at the end of the bridge and allocations from the European Economic Area (EEA) to the UK will require compliance with EU GDPR transfer constraints.

What is the UK-GDPR?

The United Kingdom General Data Protection Regulation (UK-GDPR) is the UK’s national data privacy law that is the proxy for the EU’s GDPR after Brexit; it is fundamentally the equivalent to the EU’s GDPR but altered to accommodate national regions of regulation. The UK-GDPR will regulate personal data and demand the same legal grounds for managing personal data.

The GDPR is indeed still retained in domestic law as the UK GDPR, although the UK has the freedom to maintain the framework under evaluation. The ‘UK GDPR’ as it’s known as, rests adjacent to a revised edition of the DPA 2018. It is also essential to note that the fundamental ethics, constitutional rights, and responsibilities remain as they were but that there are connotations for the regulations on transmissions of individual data between the UK and the EEA.

The UK GDPR also pertains to regulators and processors established out of the UK if their managing pursuits correlate to:

• presenting commodities or services to persons in the UK; or
• supervising the conduct of persons taking place in the UK.

Similarly, there are also outcomes for UK regulators who have an institution in the EEA, have consumers in the EEA, or observe individuals in the EEA. The EU GDPR still pertains to this handling as data can still flow freely from the EEA because the EU have adopted adequacy decisions about the UK, but the European data protection mandates has altered the way you can interact. CRI® Group’s own exclusive, expert-developed 3PRM™ services help you proactively mitigate risks from third-party affiliations, protecting your organisation from liability, brand damage, and harm to the business. Whether your organisation has a large, well-established third-party program, is in the early stages of development, or is anywhere in between, the 3PRM™ solution can improve the health of your program and future-proof your entire business in many forms.

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Which rules apply?

Whilst the adequacy judgments stay in order, the UK GDPR is still valid and is expected to remain so until the 27^{th of} June 2025. The EU Commission will be supervising advancements in the UK on a constant basis to guarantee that the UK will continue to deliver a comparable degree of data protection. The Commission is still able to revise, postpone, or rescind the decisions if concerns cannot be settled. EU data subjects or an EU data protection authority can also instigate a lawful dispute regarding the decisions in which the Court of Justice of the European union would then have to determine whether the UK did essentially deliver comparable security.

In the absenteeism of an EU GDPR adequacy decision, the Frozen GDPR would be valid to subjective data of the basis of if:

• it was administered in the UK under the EU GDPR before 01 January 2021; or
• it’s being administered in the UK on the basis of the Withdrawal Agreement

Conversely, the UK-GDPR does increase on -and diverge from- the EU GDPR in noteworthy approaches that will make modifications to the legal environment of data protection in the UK.

UK-GDPR expands and changes the European GDPR

The areas increased on by the UK-GDPR are:

• National security
• Intelligence services
• Immigration

These regions, are per definition, are outside the scope of the European GDPR the three of them are deemed to be extra-national regulation from the EU devoid of powers to govern affairs of national confidence in constituent nations. Nevertheless, the UK-GDPR sets out specific concessions by which the customary welfare of personal data can be circumvented, e.g., when in matters of national security or in matters of immigration. It also applies the same requirements for collection and processing of personal data to the intelligence services. A further significant change is that the Information Commissioner, who was the leading data protection authority in the UK today, became the primary director, monitor and enforcer of the UK-GDPR.

Are you post-Brexit GDPR compliant? 

The UK-GDR would now entail your organisation’s site or application to request for the user’s approval prior to accumulating and managing data via cookies. It involves that your organisation not amassing more data than is truly mandatory and to also make it as straightforward for your users to rescind authority to the application of data as it is to give it. Transparency is key in the UK-GDPR and requires clarification of how long data is stored and how you will be processing users’ personal data.

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It’s always great to have a helping hand when it comes to compliance and risk management – especially with all the new changes expected to take place ahead of securing the integrity and morality across corporate culture. Take a proactive stance with the highest level of expertise as a part of your essential corporate strategy. Contact us today to learn more about our full range of services to help your organisation stay protected.

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10 Ways to Maintain GDPR Compliance

In 2018, the European Union’s (EU) General Data Protection Regulation (GDPR) came into force. The GDPR was a response to massive worldwide data breaches that were undermining the trust and security of private citizens whose personal information was at stake. As this data was exposed by both hackers and, in some cases, simply through poor security measures, governments of the EU felt it was time to create a strong piece of governance to bolster protection. While the initial rollout of GDPR held some uncertainty and unknowns for organisations subject to its guidelines, there is now a much clearer picture of how its standards apply. The punishments for being caught out of compliance can be severe: Violators of the GDPR may be fined up to €20 million or up to 4 percent of the annual worldwide turnover of the preceding financial year in case of an enterprise, whichever is greater (European Commission, 2020, GDPR.eu, 2020). At CRI Group, our integrity due diligence experts are trained at helping organisatons achieve and maintain compliance with GDPR. Our leading risk management and compliance agents provide the following top 10 GDPR best practices for any business or entity that deals with collecting, storing or using personal information:

1. Employ a Data Protection Officer (DPO)

It is a GDPR requirement that entities who carry out regular and systematic monitoring of individuals on a large scale, or large-scale processing of certain special categories of data, have an assigned DPO. It is also recommended, however, for all other entities to help ensure data security. While the GDPR does not specifically list the necessary training or qualifications of a DPO, the regulation does require the DPO to have “expert knowledge of data protection law and practices” (Digital Guardian, 2019). Implement thorough background screening processes and make sure they are trained and qualified to be your DPO.

2. Train your employees

Ensure that all personnel are aware of the GDPR and your organisation’s commitment to compliance. Make sure that all leaders, and especially key personnel charged with collecting, handling or storing data, understand their responsibilities under GDPR. Make date protection training a regular part of your employee curriculum.

3. Confirm the legality of your data collection

GDPR requires that you have a legal basis to collect personal data. For most businesses, the following are the most likely to be applicable:

• The information is necessary to perform a contract between the organisation and the individual;
• You have a legal obligation to process the data (such as a court order);
• The organisation has a legitimate interest in collecting and processing the data – in other words, there needs to be a relationship and business reason to collect the date (it cannot be random);
• The individual has provided direct consent to the processing of the data.

4. Maintain thorough records

For larger organisations (more than 250 employees), GDPR requires that records of data collection and processing be maintained. Again, this is also a best practice for smaller organisations, as well. It can help establish that the organisation is dutifully complying with the data protection principles in GDPR. Take inventory and make a record of the data you have collected and are storing to date. Create a detailed matrix to understand what types of data you are holding, where/how it as collected, how and where it is held, and whether it is still needed. Based on this information, you can also develop a data-retention policy to govern how long personal data is kept and stored. Keeping data on file longer than needed is a liability, and serves no business purpose.

5. Establish consent policies for data

For some of your records, consent is your lawful basis for holding it. Under GDPR, it is no longer acceptable to assume consent in your collected data, or treat silence as consent. Create clear and unambiguous consent forms for your data collection that demonstrate adherence to GDPR principles. And remember, under GDPR, you must make it a simple process for an individual to withdraw their consent at any time.

6. Perform due diligence on third-parties

Under GDPR, your organisation is responsible if third-party partners collect, store or manage data for your organisation. You must ensure their compliance with GDPR as if it is your own, since they are responsible for your data. This is the time to update your contracts with them to include compliance measures, as needed. It is also important that you review their control systems and their data handling processes. They must be comprehensive and meet all of the GDPR requirements to keep data secure. CRI Group’s third-party risk management experts can help you conduct effective reviews of your partners and their processes.

7. Be responsive

Under GDPR, your organisation must respond to requests from individuals whose data you have collected and/or are storing. These requests are spelled out as individuals rights in regards to their personal data and they include the following:

• Right to be informed about what data is collected and why;
• Right of access to data that has been collected;
• Right to rectification/correction of inaccurate data;
• Right to erasure of data (“right to be forgotten”);
• Right to restrict processing of personal data;
• Right to data portability;
• Right to object to use of data; and
• Right not to be subject to automated decision making, including profiling.

Have a process in place to timely respond to requests and provide data when requested in order to stay in compliance.

8. Have written policies in place

Develop your internal policies in regards to GDPR and how you protect personal data, and communicate them across your organisation. Take special note to spell out policies on data retention, cross-border processing of date, and how you collect and handle data for persons under the age of 16, as GDPR has special requirements in regards to children’s data.

9. Conduct risk assessments

GDPR requires Data Protection Impact Assessments in certain cases. These assessments measure your organisation’s ability to protect personal data, and risks associated with that protection. If your data processing is considered high-risk, uses new technology, or deals in large-scale processing of data in certain categories, the assessments are required – but in for any organisation, they are recommended. Data protection experts at an outside firm like CRI Group can help you prepare robust risk assessments and follow-up plans to address their results.

10. Be prepared for a breach

A worst-case scenario in data security is a breach that exposes personal information. Under the steps above, your organisation should be well-positioned to prevent or limit any breach to your data security. However, you should always have a contingency plan in place to immediately respond to a breach should it occur. Understand that GDPR requires that the applicable EU data protection supervisory authority be notified within 72 hours of a breach. Gone are the days where a company can announce it weeks or even months after the fact. Be ready to notify the affected individuals that their data has been compromised, so that they can take the appropriate steps to respond.

Organisations don’t like to think about the impact of a data breach – but major cases have pushed governments to act in the public’s interest. Perhaps nowhere is this more true than in the EU, where the GDPR is now the governing policy for organisations that deal with individuals’ personal data. By being proactive with the steps above, your organisation can be better prepared and maintain compliance with the GDPR. Most importantly, you will have the confidence and trust of your consumers through effective best practices in handling and protecting their data. CRI Group’s experts are here to help. Contact us today so that we can walk you through the steps of GDPR compliance.

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If you have any further questions or interest in implementing compliance solutions, please contact us.

CRI Group has safeguarded businesses from any risks, providing investigations (i.e. insurance fraud), employee background screening, investigative due diligence, business intelligence,  third-party risk management, forensic accounting, compliance and other professional investigative research services. In 2016, CRI Group launched Anti-Bribery Anti-Corruption (ABAC®) Center of Excellence – an independent certification body established for ISO 37001:2016 Anti-Bribery Management Systems, ISO 37301 Compliance Management Systems and ISO 31000:2018 Risk Management, providing training and certification. ABAC® operates through its global network of certified ethics and compliance professionals, qualified auditors and other certified professionals. Contact ABAC® for more on ISO Certification and training.

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