Europe’s upcoming Global Data Protection Regime (GDPR) comes into effect in May 2018, but it’s also important to consider how it affects data protection not only in Europe, but every country that does business with Europe.
We spoke to Brian Fletcher, Symantec’s director of Government affairs, APJ about privacy, data collection, protection, compliance, and why businesses should prepare.
Data privacy – Since WWII, Europe has always handled it better
One fundamental part of all data is its privacy; but Fletcher says it’s a complex definition that is rooted in culture. Every culture draws the line at a different point depending on their concepts of privacy and property. As a result, different nations can have very different privacy laws.
“Australia and New Zealand have taken a low concept of privacy. There’s no Bill of Rights – in the United States their right to privacy that has been entrained for hundreds of years. It’s not written into our constitutions and our own Privacy Acts started quite late.”
Australia’s Privacy Act came into effect in 1988 while New Zealand took until 1990 to put legislation in place. He says this is because the concept of privacy was low, and there wasn’t a lot of pressure on politicians to increase privacy legislation.
“It was a bipartisan thing from both parliaments in Australia and New Zealand. Everyone agrees it’s an important thing but there’s not a lot of urgency about bringing it up. To counter that, in Europe the cultural concept of privacy is very strong. The modern concept came out of the 1947 Charter of Human Rights. Out of the ashes of WW2, personal information was used to persecute throughout Europe. It became a fundamental human right in Europe,” Fletcher explains.
He says this is why Europe takes a strong view on privacy, and why the GDPR is the next step in making data privacy more important in the digital world.
Mandatory reporting is one aspect of the GDPR – other aspects such as the right to be forgotten, the right to access your own data, the right to correct that data. The European Commission saw these big American companies coming into Europe and misusing data.”
“In this region we look at something like the GDPR and think, ‘that’s extreme’. You’d never be able to do something like that in Australia and New Zealand at the moment.”
Australia’s Law Reform Commission recommended mandatory reporting in 2007, but wasn’t passed until 2016. New Zealand is in a similar situation. It was proposed in 2010/2011 and it hasn’t been passed yet, he says.
“A/NZ has a very narrow view of privacy data. It tends to be about financial details, addresses, phone numbers, health data, but it doesn’t really go beyond that. In Europe, the way that they’ve defined personal data is any data that can be attributed back to any living person within the EU. It covers all the basics, but also goes much further. All data on how a consumer uses a website. If you can attribute an IP address back to an individual users, which most ISPs can do, that becomes personal data as well,” Fletcher says.
Those implications are huge for organisations and the wider world wide web. Even if you strip data of all its personal identifiers and metadata, Fletcher says if there is any possible way to de-anonymise that data, it must be attributed as personal data.
“If you pick up a phone number on a scrap of paper off the side of the road, you have no idea who that number belongs to and there’s no context except a string of digits that looks like a phone number. The problem is that the phone companies can connect that number back to a living person, so you still have to treat it as if it’s personal data.”
He says the former law that governed privacy involved 28 member states, which meant 28 different interpretations of the same legislation. The GDPR is pressing a common data market throughout Europe, so everybody has the same privacy requirements, he explains.
While it’s good for European companies, it’s also good for those outside of Europe, because nobody has to follow so many different privacy laws. It’s about making firms who want to access the second biggest market in the world play by their rules.
Non-compliance might hurt your wallets in a big way
“The thing that people focus on a lot when it comes to GDPR is the size of the fines. €20 million or 4% of global turnover, whichever is larger. Unless you’re Google or Apple, that’s mind-blowing. It’s actually the top end of all the fines. They’ve made it that large so that even the big boys pay attention to it. It’s coming back to the ‘we don’t care who you are’, if you come to Europe you will play by our rules’,” he says.
He says that authorities want organisations to consider how they handle data through a data governance lifecycle. From collection to processing, retention and management. That lifecycle does have a privacy impact.
“The lesson for most businesses is that privacy tends to be thrown at the security team as a security issue. It’s actually not about security; it’s about getting the processes in your business right. It’s about getting people appropriately trained and aware of issues; and it’s also about technology protecting things. It’s about those three working together,” Fletcher says.
“If you think about the collection phase, the security teams aren’t the ones who decide what types of data to collect, for what purpose and whether they have appropriate approval from the owner of that data.”
He says the European regulators not only want organisations not to be compliant with the GDPR, but be able to prove that they are throughout the entire data lifecycle. Not purely in an audit situation, but what organisations are doing every day.
Data protection officers – the new internal data police
Under the GDPR, organisations must have a data protection officer, which is specifically defined to be with enough seniority to change processes and implement them in business; must answer to the board of directors not the CEO of their organisation; they must not be influenced by the company and they must protect data not in the interests of the company.
“It’s their job to document what data exists, where it’s held and how it’s processed; who has access to it. Presumably that person would communicate with the regulators and explain the types of data the company has and what the company does with it.”
What it means for A/NZ: “Some firms have a very low appreciation that the GDPR will apply here, and it will cost them if they stuff it up”
"From the perspective of an A/NZ company there are two ways you can be impacted by the GDPR. You could be the data collector yourself. You could have an agreement with a European citizen to collect their data. It usually means you’re selling something into Europe or doing business with a European information. If you’re collecting info, you should be protecting information appropriately," Fletcher says.
He also explains that a ‘data processor’, a separate party who can access data from a collector for any purpose, has to follow the GDPR as well. They could be a cloud provider, healthcare, airline, bank, contracting, anyone who shares data with a European company.
He says that Japan-based manufacturers in particular were caught by surprise, particularly as they manufacture cars and consumer goods especially for the European market. Fletcher says those manufacturers hold a massive amount of data and have had to undertake major efforts to get themselves up to speed.
“The GDPR is a good thing for New Zealand and also a prediction of things to come. There is a myth that eventually the data residency requirement is going to stop data from leaving Europe because that’s the only way to keep it safe. That’s incorrect.”
He says there are three different ways to bring data out of Europe: one is called equivalency. New Zealand is the only country in the Southern Hemisphere to be of equivalent privacy status. As such, they allow data to come to the country. There are 10 other countries around the world that hold equivalent status. Korea and Japan are vying for equivalency as part of trade agreements.
The bigger picture and discussions to come
But maintaining equivalency may require further updates to the Privacy Law. Mandatory reporting is going to be an important part of it, but you may start seeing discussions about the right to be forgotten, the right to access, and the right to have your data deleted by companies, Fletcher says.
“That introduces new business processes that IT department haven’t had to deal with in the past. The first thing businesses need to understand is what data they have and where it is. Once that’s done, firms can start making better decisions about what privacy regimes they have to follow and the impact that will have on the greater business.”
“After that, particularly when considering the GDPR, tackle the big problems first. Too many people try to get early wins on the board instead of looking at where their big problems are and dealing with them first. We’ve got less than a year before it becomes law, you don’t have much time to work on the big things.”
“The final thing is to remember it’s not just about technology, it’s about business processes, people and technology working together to get a good privacy outcome,” Fletcher concludes.