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Comparison of General Data Protection Regulation and Data Protection Directive

Posted by Aditi Chaturvedi and Edited by Leilah Elmokadem at Feb 07, 2017 02:08 PM |
Recently, the General Data Protection Regulation (REGULATION (EU) 2016/679) was passed. It shall replace the present Data Protection Directive (DPD 95/46/EC), which is a step that is likely to impact the workings of many organizations. This document intends to offer a clear comparison between the General Data Protection Regulation (GDPR) a the Data Protection Direction (DPD).

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INTRODUCTION

The GDPR i.e. General Data Protection Regulation (REGULATION (EU) 2016/679) was adopted on May 27th, 2016. It will come into force after a two-year transition period on May 25th, 2018 and will replace the Data Protection Directive (DPD 95/46/EC). The Regulation intends to empower data subjects in the European Union by giving them control over the processing of their personal data. This is not an enabling legislation. Unlike the previous regime under the DPD (Data Protection Directive), wherein different member States legislated their own data protection laws, the new regulation intends uniformity in application with some room for individual member states to legislate on procedural mechanisms. While this will ensure a predictable environment for doing business, a number of obligations will have to be undertaken by organizations, which might initially burden them financially and administratively.

2. SUMMARY

The Regulation contains a number of new provisions as well as modified provisions that were under DPD and has removed certain requirements under the DPD. Some significant changes mentioned in the document have been summarized in this section.. These changes suggest that GDPR is a comprehensive law with detailed substantive and procedural provisions. Yet, some ambiguities remain with respect to its workability and interpretation. Clarifications will be required.

2.1 Provisions from the DPD that were retained but altered in the GDPR include:

2.1.1 Scope:

GDPR has an expanded territorial scope and is applicable under two scenarios; 1) when processor or controller is established in the Union, and 2) when processor or controller is not established in the Union. The conditions for applicability of the GDPR under the two are much wider than those provided for DPD. Also, the criteria under GDPR are more specific and clearer to demonstrate application.

2.1.2 Definitions:

Six definitions have remained the same while those of personal data and consent have been expanded.

2.1.3 Consent:

GDPR mentions "unambiguous" consent and spells out in detail what constitutes a valid consent. Demonstration of valid consent is an important obligation of the controller. Further, the GDPR also explains situations in which child's consent will be valid. Such provisions are absent in DPD.

2.1.4 Special categories of data:

Two new categories, biometric and genetic data have been added under GDPR.

2.1.5 Rights:

The GDPR strengthens certain rights granted under the DPD. These include:

a. Right to restrict processing: Under DPD the data subject can block processing of data on the grounds of data inaccuracy or incomplete nature of data. GDPR, on the other hand , is more elaborate and defined in this respect. Many more grounds are listed together with consequences of enforcement of this right and obligations on controller.

b. Right to erasure: This is known as the "right to be forgotten". Here, the DPD merely mentions that the data subject has the right to request erasure of data on grounds of data inaccuracy or incomplete nature of data or in case of unlawful processing. The GDPR has strengthened this right by laying out 7 conditions for enforcing this right including 5 grounds on which the request for erasure shall not be processed. This means that the "right to erasure" is not an absolute right. GDPR provides that if data has been made public, controllers are under an obligation to inform other controllers processing the data about the request.

c. Right to rectification: This right is similar under GDPR and DPD.

d. Right to access: GDPR has broadened the amount of information data subject can have regarding his/her own data. For example, under the DPD the data subject could know about the purpose of processing, categories of processing, recipients or categories to whom data are disclosed and extent of automated decision involved. Now under GDPR, the data subject can also know about retention period, existence of certain rights, about source of data and consequences of processing. It specifically states controllers obligations in this regard.

e. Automated individual decision making including profiling: This is an interesting provision that applies solely to automate decision-making. This includes profiling, which is a process by which personal data is evaluated solely by automated means for the purpose of analyzing a person's personal aspect such as performance at work, health, location etc. The intent is that data subjects should have the right to obtain human intervention into their personal data. This upholds philosophy of data safeguard as the subject can get an opportunity to express himself, obtain explanation and challenge the decision. Under GDPR, such decision-making excludes data concerning a child.

2.1.6 Code of conduct:

A voluntary self-regulating mechanism has been provided under both GDPR and DPD.

2.1.7 Supervisory Authority:

As compared to the DPD, the GDPR lays down detailed and elaborate provisions on Supervisory Authority.

2.1.8 Compensation and Liability:

Although compensation and liability provisions under GDPR and DPD are similar, the GDPR specifically mentions this as a right with a wider scope. While the Directive enforces liability on the controller only, under the GDPR, compensation can be claimed from both, processor and controller.

2.1.9 Effective judicial remedies:

Provisions in this area are also quite similar between the DPD and GDPR. The difference is that GDPR specifically mentions this as a "right" and the Directive does not. Use of such words is bound to bring legal clarity. It is interesting to note that in the DPD, recourse to remedy has been mentioned in the Recitals and it is the national law of individual member states, which shall regulate the enforceability. GDPR, on the other hand, mentions this under its Articles together with the jurisdiction of courts and exceptions to this right.

2.1.10 Right to lodge complaint with supervisory authority:

The right conferred to the data subject to seek remedy under unlawful processing has been strengthened under GDPR. Again, as mentioned above, GDRP specifically words this as a "right" while the DPD does not.

2.2 New provisions added to the GDPR include:

2.2.1 Data Transfer to third countries:

Provisions under Chapter V of GDPR regulate data transfers from EU to third countries and international organizations and data transfer onward. DPD only provides for data transfer to third countries without reference to international organizations.

A mechanism called adequacy decisions for such transfers remains the same under both laws. However, in situations where Commission does not take adequacy decisions, alternate and elaborate provisions on "Effective Safeguards" and "Binding Corporate Rules" have been mentioned under the GDPR. Other certain situations have been envisaged under both GDPR and DPD for data transfers in absence of adequacy decision. These are more or less similar with a only few modifications.

Significantly, GDPR brings clarity with respect to enforceability of judgments and orders of authorities that are outside of EU over their decision on such data transfer. Additionally, it provides for international cooperation for protection of personal data. These are not mentioned in the DPD.

2.2.2 Certification mechanism:

Just like code of conduct, this is also a voluntary mechanism, which can aid in demonstrating compliance with Regulation.

2.2.3 Records of processing activities:

This is a mandatory "compliance demonstration" mechanism under GDPR, which is not mentioned under DPD. Organizations are likely to face initial administrative and financial burdens in order to maintain records of processing activities.

2.2.4 Obligations of processor:

DPD fixes liability on controllers but leaves out processors. GDPR includes both. Consequently, GDPR specifies obligations of the processor, the kinds of processors the controller can use and what will govern processing.

2.2.5 Data Protection officer:

This finds no mention in the DPD. Under the GDPR, a data protection officer must be mandatorily appointed where the core business activity of the organization pertains to processing, which requires regular and systematic monitoring of data subjects on large scale, processing of large scale special categories of data and offences, or processing carried out by public authority or public body.

2.2.6 Data protection impact assessment:

This is a Privacy Impact assessment for ensuring and demonstrating compliance with the Regulation. Such assessment can identify and minimize risks. GDPR mandates that such assessment must be carried out when processing is likely to result in high risk. The relevant Article mentions when to carry out processing, the type of information to be contained in assessment and a clause for prior consultation with supervisory authority prior to processing if assessment indicates high risk.

2.2.7 Data Breach:

Under this provision, the controller is responsible for two things: 1) reporting personal data breach to supervisory authority no later than 72 hours . Any delay in notifying the authority has to be accompanied by reasons for delay; and 2) communicating the breach to the data subject in case the breach is likely to cause high risk to right and freedoms of the person. As far as the processor is concerned, in the event of data breach, the processor must notify the controller. This provision is likely to push some major changes in the workings of various organizations. A number of detection and reporting mechanisms will have to be implemented. Above all, these mechanisms will have to be extremely efficient given the time limit.

2.2.8 Data Protection by design and default:

This entails a general obligation upon the controller to incorporate effective data protection in internal policies and implementation measures.

2.2.9 Rights:

Under the GDPR, a new right called the " Right to data portability " has been conferred upon the data subjects. This right empowers the data subject to receive personal data from one controller and transfer it to another.

2.2.10 New Definitions:

Out of 26 definitions, 18 new definitions have been added. "Pseudonymisation" is one such new concept that can aid data privacy. This data processing technique encourages processing in a way that personal data can no longer be attributed to a specific data subject without using additional information. This additional information is to be stored separately in a way that it is not attributed to an identified or identifiable natural person.

2.2.11 Administrative fines:

Perhaps much concern about GDPR is due to provisions on high fines for non-compliance of certain provisions. Organizations simply cannot afford to ignore it. Non-compliance can lead to imposition of very heavy fines up to 20,000,000 EUR or 4% of total worldwide turnover.

2.3 Deleted provisions under DPD include :

2.3.1 Working Party:

Working party under the DPD has been replaced by the European Data Protection Board provided by the GDPR. The purpose of the Board is to ensure consistent application of the Regulation.

2.3.2 Notification Requirement:

The general obligation to notify processing supervisory authorities has been removed. It was observed that this requirement imposed unnecessary financial and administrative burden on organizations and was not successful in achieving the real purpose that is protection of personal data. Instead, now the GDPR focuses on procedures and mechanisms like Privacy Impact assessment to ensure compliance.

3. BRIEF OVERVIEW

The GDPR is the new uniform law, which will now replace older laws. A brief overview has been given below:

Topic

GDPR

(General Data Protection Regulation)

DPD

(Data Protection Directive)

Name

REGULATION (EU) 2016/679

DPD 95/46/EC

Enforcement

Adopted on 27 May 2016

To be enforced on 25 May 2018

Adopted on 24 October 1995

Effect of legislation

It is a Regulation.

Is directly applicable to all EU member states without requiring a separate national legislation.

It is an enabling legislation.

Countries have to pass their own separate legislations.

Objective

To protect "natural persons" with regard to processing of personal data and on free movement of such data.

It repeals DPD 95/46/EC.

To protect "individuals" with regard to processing of personal data and on free movement of such data.

Number of Chapters

XI

VII

Number of Articles

99

34

Number of Recitals

173

72

Applicability

To processors and controllers

Same

4. COMPARATIVE ANALYSIS OF GDPR AND DPD

This section offers a comparative analysis through a set of tables and text analysing and comparing the provisions of General Data Protection Regulation (GDPR) with those of the Data Protection Direction (DPD). Spaces left blank in the tables imply lack of similar provisions under the respective data regime.

4.1 Territorial Scope

GDPR has expanded territorial scope. The application of Regulation is independent of the place where processing of personal data takes places under certain conditions. The focus is the data subject and not the location. The DPD made application of national law, a criterion for determining the applicability of the Directive. Under the GDPR, the following conditions need to be satisfied for application of Regulation.

Sub-topics in the section

GDPR

DPD

Given in Article

3

4

When processor or controller is established in the Union, the Regulation/ Directive will apply if:

(DPD is silent on location of processors )

1. Processing is of personal data

2. Processing is in "context of activities" of the establishment

3. Processing may or may not take place in the Union

Processing is of personal data.

When processor or controller is not established in Union, the Regulation/Directive will apply if:

(DPD is silent on location of processors )

1. Data subjects are in the Union; and

2. Processing activity is related to:

I. Offering of goods or services; or

II. Monitoring their behavior within Union

3. Will apply when Member State law is applicable to that place by the virtue of public international law

1. Like GDPR the DPD mentions that national law should be applicable to that place by virtue of public international law;

Or

2. If the equipment for processing is situated on Member state territory unless it is used only for purpose of transit.

4.2 Material Scope

The Recital under GDPR explains that data protection is not an absolute right. Principle of proportionality has been adopted to respect other fundamental rights.

Sub-topics in the section

GDPR

DPD

Given in Article

2

3

Applies to

Processing of personal data

Processing is by automated means, wholly or partially

When processing is not by automated means, the personal data should form or are intended to form a part of filing system

Same

Does not apply to

Processing of personal data:

1. For activities which lie outside scope of Union law

2. By Member State under Chapter 2 Title V of TEU

3. By natural person in course of purely personal or household activity

4. By competent authorities in relation to criminal offences and penalties and threats to public security

5. Under Regulation (EC) No 45/2001. This needs to be adapted for consistency with GDPR

6. Which should not prejudice the E commerce Directive 2000/31/EC especially the liability rules of intermediary service providers

The provisions in DPD are similar to GDPR.

In addition to Title V, the DPD did not apply to Title VI of TEU.

DPD doesn't mention Regulation (EC) No 45/2001 or the E commerce Directive 2000/31/EC.

4.3 Definitions

GDPR incorporates 26 definitions as compared to 8 definitions under DPD. There are 18 new definitions in GDPR. Some definitions have been expanded.

Sub-topics in the section

GDPR

DPD

Given in Article

4

2

New Definitions under GDPR

1. Restriction of processing

2. Profiling

3. Pseudonymisation

4. Personal data breach

5. Genetic data

6. Biometric data

7. Data concerning health

8. Main establishment

9. Representative

10. Enterprise

11. Group of undertakings

12. Binding corporate rules

13. Supervisory authority

14. Supervisory authority concerned

15. Cross border processing

16. Relevant and reasoned objection

17. Information society service

18. International organizations

2 definitions that have been expanded under GDPR

1. Personal data

2. Consent

6 Definitions which have remained same in GDPR and DPD

1. Processing of personal data

2. Personal data filing system

3. Controller

4. Processor

5. Third party recipient

4.3.1 Expanded definition of personal data

Both DPD and GDPR apply to 'personal data'. The GDPR gives an expanded definition of 'personal data'. Recital 30 gives example of an online identifier such as IP addresses.

Sub-topics in the section

GDPR

DPD

Given in Article

4(1)

2(a)

New term added in the definition

A new term " online identifier" has been added.

Example of online identifier is given under Recital 30. An IP address is one such example.

4.3.2 Expanded definition of consent

Valid consent must be given by the data subject. The definition of valid consent has been added under GDPR. Recital 32 further explains that consent can be given by "means of a written statement including electronic means or an oral statement". For example, ticking a box on websites signifies acceptance of processing while "pre ticked boxes, silence or inactivity" do not constitute consent.

Sub-topics in the section

GDPR

DPD

Given in Article

4(11)

2(h)

Term added in GDPR

Consent must be unambiguous, freely given, specific and informed.

The word "unambiguous" is not contained in DPD.

Means of signifying assent to processing own data

Assent can be given by a statement or by clear affirmative action signifying assent to processing.

DPD merely mentions that freely given, specific and informed consent signifies assent.

4.4 Conditions for consent

GDPR lays down detailed provisions for valid consent. Such provisions are not given in DPD.

Sub-topics in the section

GDPR

DPD

Article

7

Obligation of controller

Must demonstrate consent has been given

Presentation of written declaration of consent

It should be in a clearly distinguishable, intelligible and easily accessible form.

Language should be clear and plain.

If declaration or any part of it infringes on Regulation

Declaration will be non-binding.

Right of data subject

To withdraw consent at any time.

If consent is withdrawn, it will not make processing done earlier unlawful.

For assessing whether consent is freely given

Must consider whether performance of contract or provision of service is made conditional on consent to processing of data not necessary for performance of contract.

4.5 Conditions applicable to child's consent in relation to information society services

This article prescribes an age limit for making processing lawful when information society services (direct online service) are offered directly to a child.

Sub Topics in the Section

GDPR

DPD

Given in Article

8

Conditions for valid consent in this case

If child is at least 16 years old his consent is valid.

If child is below 16 years consent must be obtained from holder of parental responsibility over the child.

Age relaxation can be given when

Member States provides a law lowering the age.

Age cannot be lowered below 13 years.

Controller's responsibility

Verify who has given the consent

Exceptions

This law will not affect:

General contract law of member states;

Effect of contract law on a child;

4.6 Processing of special categories of personal data

Like the DPD, the GDPR spells out the data that is considered sensitive and the conditions under which this data can be processed. Two new categories of special data, "genetic data" and "biometric data", have been added to the list in the GDPR.

Sub Topics in the Section

GDPR

DPD

Article

9

8

Categories of data considered sensitive

Racial or ethnic origin

Same

Political opinions

Same

Religious or philosophical beliefs

Same

Trade union membership

Same

Health or sex life or sexual orientation

Same

Genetic data or

Biometric data uniquely identifying natural person

Circumstances in which processing of personal data may take place

If there is explicit consent of data subject provided Member State laws do not prohibit such processing

Necessary for carrying out specific rights of controller or data subject

Under DPD these rights can be for employment.

The GDPR adds social security and social protection to this list.

These rights are to be authorized by Member state or Union. The GDPR adds "Collective agreements" to this.

In the vital interest of data subject who cannot give consent due to physical or legal causes.

Same

In the vital interest of a Natural person physically or legally incapable of giving consent

Same

For legitimate activities carried on by not-for profit-bodies for political, philosophical or trade union aims subject to certain conditions.

Same

When personal data is made public by data subject

Same

For establishment, exercise of defense of legal claims or for courts

Same

For substantial public interest in accordance with Member State or Union law

Is necessary for:

Preventive or occupational medicine

Assessing working capacity of employee

Medical diagnosis

Healthcare or social care services

Contract with health professional

Is necessary in Public interest in the area of public health

For public interest, scientific or historical research or statistical purpose

Data for preventive or occupational medicine, medical diagnosis etc. can be processed when:

Data is processed by or under responsibility of a professional under obligation of professional secrecy as state in law

Here the processing is done by health professional under obligation of professional secrecy

4.7 Principles relating to processing of personal data

The principles set out in GDPR are similar to the ones under DPD. Some changes have been introduced. Accountability of the controller has been specifically given under GDPR.

Sub-topics in this section

GDPR

DPD

Given in Article

5

6

Lawfulness, fairness, transparency

Processing must be Lawful, fair and transparent

Does not mention transparent

Purpose limitation

Data must be specified, explicit and legitimate.

Same

Processing for achieving public interest, scientific or historical research or statistical purpose is not to be considered incompatible with initial purpose.

Same

Data minimization

Processing is adequate, relevant and limited to what is necessary

Same

Accuracy

Data is accurate, up to date, erased or rectified without delay

Same

Storage limitation

Data is to be stored in a way that data subject can be identified for no longer than is necessary for purpose of processing

Same

Data can be stored for longer periods when it is processed solely in public interest, scientific or historical research or statistical purpose

Same

However, public interest is not mentioned.

There must be appropriate technical and organizational measures to safeguard rights and freedoms

Same

Additionally, it specifically states that Member States must lay down appropriate safeguards

Integrity and confidentiality

Manner of processing must:

Ensure security of personal data,

Protection against unlawful processing and accidental loss, destruction or damage

Not mentioned

Accountability

Controller is responsible for and must demonstrate compliance with all of the above.

DPD states it is for the controller to ensure compliance with this Article.

Unlike GDPR, DPD doesn't specifically state the responsibility of controller for demonstrating compliance.

4.8 Lawfulness of processing

The conditions for "lawfulness of processing" under DPD have been retained in the GDPR with certain modifications allowing flexibility for member states to introduce specific provisions in public interest or under a legal obligation. It should be noted that protection given to child's data and rights and freedoms of data subject should not be prejudiced. Additionally, a non-exhaustive list has been laid down in the GDPR for determining if processing is permissible in situations where the new purpose of processing is different from original purpose.

Sub Topics in the Section

GDPR

DPD

Given in Article

6

7

Processing is lawful when :

If at least one of the principles applies:

Data subject has given consent to processing for specific purpose(s).

Same

However it mentions "unambiguous" consent.

Processing is necessary for performance of contract to which data subject is party or at request of data subject before entering into a contract

Same

Processing is necessary for controller's compliance with legal obligation.

Same

Is necessary for legitimate interests pursued by controller or by third party subject to exceptions (should not override rights and freedoms of data subject and protections given to child's data.)

Same

It is necessary for performance of task carried out in public interest or for exercise of official authority vested in controller

Same

It additionally mentions third party:

"…exercise of official authority vested in controller or in a third party to whom data are disclosed"

For protections of vital interest of data subject or another natural person

Same

Does not mention natural person.

Member States may introduce specific provisions when:

When processing is necessary for compliance with a legal obligation or to protect public interest

Basis for processing for shall be laid down by: Union law or Member State law

If processing is done for purpose other than for which data is collected and is without data subject's consent or is not collected under law:

To determine if processing for another purpose is compatible with the original purpose

Controller shall take into account following factors:

Link between purposes for which data was collected and the other purpose

Context in which personal data have been collected

Nature of personal data

Possible consequences of other purpose

Existence of appropriate safeguards

4.9 Processing which does not require identification:

This article lays down the conditions under which the controller is exempted from gathering additional data in order to identify a data subject for the purpose of complying with this Regulation. If the controller is able to demonstrate that identification is not possible, the data subject is to be informed if possible.

Sub Topics in the Section

GDPR

DPD

Given in Article

11

Conditions under which the controller is not obliged to maintain process or acquire additional information to identify data subject

If purpose for processing doesn't not require identification of data subject by the controller

Consequence of not maintaining the data

Art 15 to 20 shall not apply provided controller is able to demonstrate its inability to identify the data subject

Exception to above consequence will apply when :

Data subject provides additional information enabling identification

4.10 Rights of the data subject

The General Data Protection Rules (GDPR) confers 8 rights upon the data subject.These rights are to be honored by the controller:-

1. Right to be informed

2. Right of access

3. Right to rectification

4. Right to erasure

5. Right to restrict processing

6. Right to data portability

7. Right to object

8. Rights in relation to automated decision making and profiling

4.10.1 Right to be informed

The controller must provide information to the data subject in cases where personal data has not been obtained from the data subject. A number of exemptions have been listed. Additionally, GDPR lays down the time period within which the information has to be provided.

Sub Topics in the Section

GDPR

DPD

Given in Article

14

10

Type of information to be provided

Identity and contact details of the controller or controller's representative

Same

Contact details of the data protection officer

Purpose and legal basis for processing

Purpose of processing

Recipients or categories of recipients of personal data

Same

Intention to transfer data to third country or international organization and Information regarding adequacy decision or suitable safeguards or Binding Corporate Rules or derogations. This includes means to obtain a copy of these as well as information on place of availability.

Additional information to be provided by controller to ensure fair and transparent processing

Storage period of personal data and criteria for determining the period

Legitimate interests pursued by controller or third party

Existence of data subject's rights with regard to access or rectification or erasure of personal data, automated decision making

Where applicable, existence of right to withdraw consent

Time period within which information is to be provided

Information to be given within a reasonable period, latest within one month.

To be provided latest at the time of first communication to data subject, if personal data are to be used for communication with data subject

In case of intended disclosure to another recipient , at the latest when personal data are first disclosed.

If processing is intended for a new purpose other than original purpose, information to be provided prior to processing on new purpose.

Situations in which exceptions are applicable

Data subject already has information

Same

Provision of information involves disproportionate effort or is impossible or renders impossible or seriously impairs achievement of objective of processing.

This is particularly with respect to processing for archiving purposes in public interest, scientific or historical research or statistical purpose.

However controller must take measures to protect data subject's rights and freedom and legitimate interests including make information public.

Provision involves impossible or disproportionate effort, in particular where processing is for historical or scientific research.

However, appropriate safeguards must be provided by Member States.

Obtaining or disclosure is mandatory under Union or member law and it provides protection to data subject's legitimate interests

Where law expressly lays down recording or disclosure provided appropriate safeguards are provided by Member States.

This is particularly applicable to processing for scientific or historical research.

Confidentiality of data mandated by professional secrecy under Union or Member State law

4.10.2 Right to access

Both Data Protection Directive (DPD) and General Data Protection Rules (GDPR) confer right to access information regarding personal data on the data subject.

CJEU in YS V. Minister voor Immigrate Integratie en Asiel stated that it is the data subject's right "to be aware of and verify the lawfulness of the processing".

Sub-topics in the section

GDPR

DPD

Given in Article

15

12

Data subject has the right to know about:

Purpose of processing

Same

Categories of processing the data

Same

Recipients or categories to whom data are disclosed

Same

Retention period of the data and criteria for this

Existence of right to request erasure, rectification or restriction of processing

Right to lodge complaint with supervisory authority

Knowledge about source of data

To know about any significant and envisaged consequences of processing for the data subject

Existence of automated decision making and logic involved

Same

In case of data transfer to third country

Right to be informed about the safeguards

Controller's obligation

To provide a copy of data undergoing processing. Reasonable fee based on administrative costs can be charged for this.

4.10.3 Right to rectification

GDPR and DPD both give the data subject the right to rectify their personal data. Under the GDPR the data subject can complete the incomplete data by giving a supplementary statement.

Sub-topics in the section

GDPR

DPD

Given in Article

16

12(b)

Right can be exercised when:

Processing does not comply with the Directive i.e. damage is caused due to unlawful processing (Recital 55)

OR

When data is incomplete

When data is incomplete or inaccurate

Obligations of controller

To enforce the right without undue delay

Obligation of controller to give notification when data is disclosed to third party

Given under Art 19

Request of erasure of personal data to be communicated to each recipient of such data

Given under Article 12(c)

Request must be communicated to third parties

It should not involve an impossible or disproportionate effort

Same

4.10.4 Right to erasure

This is also referred to as the "right to be forgotten". It empowers the individual to erase personal data under certain circumstances. The data subject can request the controller to remove the data for attaining this purpose.

Sub-topics in the section

GDPR

DPD

Given in Article

17

12(b)

Obligation of the controller

To erase the data without undue delay

Conditions under which the right can be exercised

When processing does not comply with the Directive i.e. damage is caused due to unlawful processing (Recital 55)

OR

When data is incomplete or inaccurate

Personal data is no longer necessary for the purpose for which it was collected or processed

Data Subject withdraws consent for processing

Data subject objects to processing and there are no overriding legitimate grounds for processing

Data subject objects to processing for direct marketing purpose

Personal data has been unlawfully processed

When personal data has to be erased under a legal obligation of Union or member State law

When personal data has been collected in offer of information society services to a child

Condition of processing under which request to erasure shall not be granted

For exercising right of freedom of expression and information

Processing is done under Union or Member State law in public interest or exercise of official authority vested in controller

Done for public interest in public health

For public interest, scientific or historical research or statistical purpose.

For establishment, exercise or defense of legal claims.

Controller's obligations when personal data has been made public

Controller to take reasonable steps to inform controllers who are processing the data, of the request of erasure.

All links, copy or replication of personal data to be erased.

Technology available and cost of implementation to be taken into account.

Notification when data is disclosed to third party

Given under obligation of controller under Art 19:

Request of erasure of personal data to be communicated to each recipient of such data

Given under obligation of controller under 12(c) :

Request must be communicated to third parties

It should not involve an impossible or disproportionate effort

Same

4.10.5 Right to restrict processing

While DPD provided for "blocking", the GDPR strengthened this right by specifically conferring the " Right to Restrict Processing" upon the data subject. This Article gives data subject the right to restrict processing under certain conditions. Recital 67 explains that these methods could include steps like removing published data from website or temporarily moving the data to another processing system.

Sub-topics in the section

GDPR

DPD

Given in Article

18

12(b)

About this right

Data subject can restrict processing of data

Data subject is allowed to erase, rectify or block processing of personal data.

Conditions under which the right can be exercised

When accuracy of personal data is contested

Besides accuracy, the DPD also mentions "incomplete nature of data" as grounds for exercising this right.

When processing is unlawful and data subject opposes erasure and requests restriction of data use

When data is no longer needed by controller but is required by data subject for establishment, exercise or defense of legal claims.

Data subject objects to processing and the verification by controller of compelling legitimate grounds for processing is ongoing

Consequences of this enforcement of this right

Controller can store data but not process it

Processing can be done only with the data subject's consent; or

Processing can be done for establishment exercise or defense of legal claims; or

Processing can be done for protecting rights of another natural or legal person ;or

It can be done in public interest of Union or Member State.

Obligations of controller under Art 18

The controller must inform the data subject before the restrictions are lifted.

Obligations of controller under Art 19

Inform each recipient of personal data about the restriction.

This obligation need not be performed if it is impossible to do so or it involved disproportionate effort.

Inform data subject about the recipients when requested by the data subject.

4.10.6 Right to data portability

This right empowers the data subject to receive personal data from one controller and transfer it to another. This gives the data subject more control over his or her own data. The controller cannot hinder this right when the following conditions are met.

Sub-topics in the section

GDPR

DPD

Given in article

20

Conditions for data transmission

The data must have been provided to the controller by data subject himself; and

Processing is based on:

Consent; or

For performance of contract; and is carried out by automated means

Data transfer must be technically feasible

Format of personal data

It should be in a:

Structured

Commonly-used

Machine readable format

Time and cost for data transfer

Given in Art 12(3)

Should be free of charge

Information to be provided within one month. Further extension by two months permissible under certain circumstances.

Circumstance under which this Right cannot be exercised

When the exercise of the Right prejudices rights and freedom of another individual

When processing is necessarily carried out in public interest

When processing is necessarily done in exercise of official authority vested in controller

When this Right adversely affects the "Right to be forgotten"

4.10.7 Right to Object

Both DPD and GDPR confer upon the data subject the right to object to processing on a number of grounds. The GDPR strengthens this right . Under GDPR, there is a visible shift from the data subject to the controller as far as the burden of showing " compelling legitimate grounds" is concerned. Under the DPD, when processing is undertaken in public interest or in exercise of official authority or in legitimate interests of third party or controller, the data subject not only has to show existence of compelling legitimate grounds but also that objection is justified. On the other hand, GDPR spares the data subject from this exercise and instead places the onus on the controller of demonstrating that "compelling legitimate grounds" exist such that these grounds override the interests, rights and freedom of the data subject.

GDPR also provides a new ground for objecting to processing. The data subject can object to processing when it is for scientific or historical research or statistical purpose unless such processing is necessary in public interest.

Under the GDPR the data subject must be informed of this right "clearly and separately" and "at the time of first communication with data subject" when processing is done in public interest/exercise of official authority/legitimate interest of third party or controller or for direct marketing purpose. This right can be exercised by automated means in case of information society service.

The DPD also provides that the data subject must be informed of this right if the controller anticipates processing for direct marketing or disclosure of data to third party. It specifically states that this right is to be offered "free of charge". Additionally, it places responsibility upon the Member States to ensure that data subjects are aware of this right.

Sub-topics in the section

GDPR

DPD

Given in Article

21

14

Conditions under which the right can be exercised during processing

When performance of task is carried out in public interest or in exercise of official authority vested in controller. (Art 6(1)(e))

Exception:

If controller demonstrates processing is for compelling legitimate grounds which override interests of data subject

For establishment, exercise or defense of legal claims.

Grounds are same but the data subject also has to show existence of compelling legitimate grounds. Processing will cease if objection is justified.

Exceptions:

Unless provided by national legislation the data subject can object on this ground.

For legitimate interests of controller or third party (Art 6(1)(f))

Exception:

1. If controller demonstrates processing is for compelling legitimate grounds that override interests of data subject.

2. For establishment, exercise or defense of legal claims.

Same as above

When data is processed for scientific/historical research/ statistical purpose under Art 89(1)

Exception:

If processing is necessary for public interest

When personal data is used for marketing purpose.

Can object at anytime.

No exceptions

Same

4.10.8 Rights in relation to automated individual decision making including profiling

This Article empowers the data subject to challenge automated decisions under certain conditions. This is to protect individuals from decisions taken without human intervention.

Sub-topics in the section

GDPR

DPD

Given in Article

22

15

This right can be exercised when decisions are based:

Only on automated processing

Including profiling; and

Same

Produce legal effects or have similarly significant effects on data subject

Same

Conditions under which this right will not be guaranteed

For entering into or performance of contract;

Same

If Member State or Union law authorizes the decision provided it lays down suitable measures for safeguarding data subject's rights, freedoms and legitimate interests; Or

Same

When decision is based on data subject's explicit consent.

Controller's obligation

Enforce measures to safeguard rights and freedom and interests

Ensure data subject can obtain human intervention, express his point of view, challenge decisions

Automated decision making will not apply when:

"Special categories of personal data" are to be processed

However, if the data subject gives his explicit consent or such processing serves substantial public interest then the restriction can be waived.

Concerns a child

4.11 Security and Accountability

4.11.1 Data protection by design and default

This is another new concept under GDPR. It is a general obligation on the controller to incorporate effective data protection in internal policies and implementation measures. Measures include: minimization of processing, pseudonymisation, transparency while processing, allowing data subjects to monitor data processing etc. The implementation of organizational and technical measures is essential to demonstrate compliance with Regulation.

Sub-topics in the section

GDPR

DPD

Article

25

Responsibility of controller when determining means of processing and at the time of processing

Implementation of appropriate technical and organizational measures for data protection

Ensure that by default only personal data necessary for purpose of processing is processed

Means of demonstrating compliance with this Article

Approved certification mechanism may be used.

Data minimization

Transparency etc.

4.11.2 Security of personal data

Security of processing is mentioned in the GDPR under Article 32. The controller and processor must implement technical and organizational measures to ensure data security. These may include pseudonymisation, encryption, ensuring confidentiality, restoring availability and access to personal data, regularly testing etc. Compliance with the code may be demonstrated by adherence to Code of conduct and certification mechanism. Further, all processing which is done by a natural person acting under authority of controller or processor can be done only under instructions from the controller.

4.11.3 Notification of personal data breach

This Article provides the procedure for communicating the personal data breach to supervisory authority. If the breach is not likely to result in risk to rights and freedoms of natural persons, then the controller is not required to notify the supervisory authority.

Sub-topics in the section

GDPR

DPD

Given in Article

33

Responsibility of controller

Report personal data breach to supervisory authority after being aware of it

Time limit for reporting data breach

Must be reported no later than 72 hours

In case of delay in reporting

Reasons to be stated

Responsibility of processor

Notify the controller after being aware of breach

Description of notification

Describe nature of personal data

Name contact details of data protection officer

Likely consequences of personal data breach

Measures to be taken or proposed to be taken by controller to address the breach or mitigate its possible effect

When information cannot be provided at same time

Provide it in phases without further undue delay

For verification of compliance

Controller has to document any personal data breach. It must contain Facts , effects and remedial action taken

4.11.4 Communication of personal data breach to the data subject

Not only is the supervisory authority to be notified, but data subjects are also to be informed about personal data breaches without undue delay under certain conditions.

Sub-topics in the section

GDPR

DPD

Given in Article

34

Conditions under which controller is to communicate the breach to data subject

When breach is likely to cause high risk to rights and freedoms of natural persons

Nature of communication

Must be in a clear and plain language.

Must describe the nature of breach.

Must Contain at least:

Name contact details of data protection officer

Likely consequences of personal data breach

Measures to be taken or proposed to be taken by controller to address the breach or mitigate its possible effect

Condition under which communication will not be required

If controller has implemented appropriate technical and organizational measures and these were applied to the affected data.

E.g.: encryption

Subsequent measures have been taken by controller to ensure there is no high risk

If communication involves disproportionate effort.

Public communication or similar measures can be undertaken under such circumstances.

Role of supervisory authority

In case of likelihood of high risk, the authority may require the controller to communicate the breach if the controller has not already done so.

4.11.5 Data protection impact assessment

This is also known as Privacy Impact Assessment. While DPD provides general obligation to notify the processing to supervisory authorities, the GDPR, taking into account the need for more protection of personal data, has replaced the notification process by different set of mechanisms.

To serve the above purpose, the data protection impact assessment (DPIA) has been provided under this Article.

Sub-topics in the section

GDPR

DPD

Given in Article

35

When to carry out assessment

When new technology is used; and

Processing is likely to result in high risk to rights and freedoms of natural persons

Automated processing including profiling involving systematic and extensive evaluation of personal aspects of natural persons;

and

When decisions based on such processing produce legal effects

Large scale processing of special categories of data or personal data relating to criminal convictions and offences

Large scale systematic monitoring of publicly accessible area

Type of information contained in assessment

Description of processing operations and purpose

Assessment of necessity and proportionality of processing operations

Assessment of risks to individuals

Measures to address risks and demonstration of compliance with Regulation

Sub-topics in the section

GDPR

DPD

Topic

Prior Consultation

Given in Article

36

When should controller consult supervisory authority

Prior to processing; and

DPIA indicates high risk; and

In absence of risk mitigation measures by controller

Data protection officer

GDPR mandates that a person with expert knowledge of data protection law and practice is appointed for helping the controller or processor to comply with the data protections laws. A single data protection officer (DPO) may be appointed by a group of undertakings or where controller or processor is a public authority or body.The DPO must be accessible from each establishment.

Sub Topics in the Section

GDPR

DPD

Article

37

Situations in which DPO must be appointed

When processing is carried out by public authority or body.

Note: Courts acting in judicial capacity are excluded.

Core activity involves processing which requires regular and systematic monitoring of data subjects on large scale; or

Core activity involves processing of large scale special categories of data and criminal convictions and offences

Position of Data Protection Officer

The DPO must directly report to the highest management level of the controller or processor. Data subjects may contact the DPO in case of problems related to processing and exercise of rights.

Sub Topics in the Section

GDPR

DPD

Article

38

Responsibility of controller and processor

Ensure DPO is involved properly and in timely manner

Provide DPO with support, resources and access to personal data and processing operations

Not dismiss or penalize DPO for performing his task.

Ensure independence of working and not give instruction to DPO

Tasks of Data Protection officer

The DPO must be involved in all matters concerning data protection. He is expected to act independently and advice the controllers and processors to facilitate the establishment's compliance with Regulations.

Sub Topics in the Section

GDPR

DPD

Article

39

Tasks

Inform and advise the controller or processor and employees over data protection laws

Monitor compliance with data protection laws. Includes assigning responsibilities, awareness- raising, staff training and audits

Advice and monitor performance

Cooperate with supervisory authority

Act as point of contact for supervisory authority for processing, prior consultation and consultation on other matter

4.11.6 European Data Protection Board

For consistent application of the Regulation, the GDPR envisages a Board that would replace the Working Party on Protection of Individuals With Regard to Processing of Personal Data established under the DPD. This Regulation confers legal personality on the Board.

Sub Topics in the Section

GDPR

DPD

Article

68

Represented by

Chair

Composition of the Board

Head of one supervisory authority of each Member State and European Data Protection Supervisor or of their representatives.

Joint representative can be appointed where Member State has more than one supervisory authority.

Role of Commission

Right to participate in activities and meetings of the Board without voting rights.

Commission to designate a representative for this.

Functions of the Board

Consistent application of Regulation

Advise Commission of level of protection in third countries or international organizations

Promote cooperation of supervisory authorities

Board is to act independently

4.11.7 Supervisory Authority

GDPR lays down detailed provisions on supervisory authorities, defining their functions, independence, appointment of members, establishment rules, competence, competence of lead supervisory authority, tasks, powers and activity reports. Such elaborate provisions are absent in DPD.

Sub-topics in this section

GDPR

DPD

Given in Article

Chapter VI, Article 51 -59

28

4.12 Processor

The Article spells out the obligations of a processor and conditions under which other processors can be involved.

Sub Topics in the Section

GDPR

DPD

Article

28

What kind of processors can be used by controller

● Those which provide sufficient guarantees to implement appropriate technical and organizational measures

● Those which comply with Regulation and Rights

Obligations of processor in case of addition or replacement of processor

● Not engage another processor without controller's authorization

● In case of general written authorization inform the controller

Processing shall be governed by

Contract or legal act under Union or Member State law.

Elements of Contract

● Is binding on processor

● Sets out subject matter and duration of processing

● Nature of processing

● Type of personal data

● Categories of data subjects

● Obligations and Rights of the controller

Obligations of processor under contract or legal act

Processor shall process under instructions from controller unless permitted under law itself.

Controller is to be informed in the latter case.

Ensures that persons authorized to process have committed themselves to confidentiality

Processor to undertake all data security measures (mentioned under Art 32)

Enforces conditions on engaging another processor

Assists the controller by appropriate technical and organizational measures

Assists controller in compliance with Art 32 to 36

Delete or return all personal data to controller at the choice of controller at the end of processing

Make information available to controller for demonstrating compliance with obligations.

Contribute to audits, inspections etc.

Inform the controller if it believes that an instruction infringes the regulation or law.

Conditions under which a processor can engage another processor

● Same data protection obligations will be applicable to other processor.

● If other processor fails to fulfill data protection obligations, initial processor shall remain fully liable to controller for such performance.

4.13 Records of processing activities

The controller or processor must maintain records of processing activities to demonstrate compliance with the Regulation. They are obliged to cooperate with and make record available to the supervisory authority upon request. DPD does not contain similar obligations.

Sub Topics in the Section

GDPR

DPD

Article

30

Obligation of controller or controller's representative

Maintain a record of processing activities

Information to be contained in the record

Name and contact details of:

● Controller /joint controller / controller's representatives

● Data protection officer

Purpose of processing

Categories of data subjects and categories of personal data

Categories of recipients to whom data has been or will be disclosed

Transfers of personal data to third party, identification of third party, documentation of suitable safeguards

Expected time duration for erasure of different categories of data

Technical and organizational security measures

Obligation of processor

Maintain a record of processing activities carried out on behalf of controller

Record maintained by processor shall contain information such as:

Name and contact details of:

● Processor /processor's representative

● Controller /controller's representative

● Data protection officer

Categories of processing

Data transfer to third party

Identification of third party

Documentation of safeguards

Technical and organizational security measures

Form in which record is to be maintained

In writing and electronic form

Conditions under which exemption will apply

● Organizations employing fewer than 250 employees are exempted;

● Processing should not cause risk to rights and freedoms of data subjects

● Processing should not be occasional

● Processing should not include special categories of data

4.14 Code of Conduct

These mechanisms have been provided under GDPR to demonstrate compliance with the Regulation. This is important as the GDPR ( under Art 83 ) provides that adherence to code of conduct shall be one of the factors taken into account for calculating administrative fines. This is not an obligatory provision.

Sub Topics in the Section

GDPR

DPD

Article

40

27

Who will encourage drawing up of code of conduct

● Member States

● Supervisory Authorities

● Commission.

Specific needs of micro, small and medium enterprises to be taken into account.

● Member States

● Commissions

Does not mention the rest

Who may prepare amend or extend code of conduct

Associations and other bodies representing categories of controller or processors

Information contained in the code

Fair and transparent processing

Legitimate interests of controller

Collection of personal data

Pseudonymisation

Information to public and data subjects

Exercise of rights of data subject

Information provided to and protection of children and manner in which consent of holders of parental responsibility is obtained

Measures under:

● Data protection by design and default

● Controller responsibilities

● Security of processing

Notification of data breach to authorities and communication of same to data subjects

Data transfer to third party

Dispute resolution procedures between controllers and data subjects

Mechanisms for mandatory monitoring

Mandatory monitoring

Code of conduct containing the above information enables mandatory monitoring of compliance by body accredited by supervisory authority. (Art 41)

4.15 Certification

Like the code of conduct, Certification is a voluntary mechanism that demonstrates compliance with the Regulation. Establishment of data protection certification mechanism and data protection seals and marks shall be encouraged by Member States, supervisory authorities, Boards and Commission. As in case of code of conduct, specific needs of micro, small and medium sized enterprise ought to be taken into account. DPD does not mention such mechanisms.

Sub Topics in the Section

GDPR

DPD

Article

42

Who will issue the certificate

Certification bodies or competent supervisory authority on basis of approved criteria.

Time period during which certification shall be issued

Maximum period of three years.

Can be renewed under same conditions.

Who accredits certification bodies

Competent Supervisory bodies or National accreditation body.

When can accreditation be revoked

When conditions of accreditation are not or no longer met.

OR

Where actions taken by certification body infringe this Regulation.

Who can revoke

Competent supervisory authority or national accreditation body

4.16 Data Transfer

4.16.1 Transfers of personal data to third countries or international organizations

Chapter V lays down the conditions with which the data controller must comply in order to transfer data for the purpose of processing outside of the EU to third countries or international organizations. The chapter also stipulates conditions that must be complied with for onward transfers from the third country or international organization.

4.16.2 Transfer on the basis of an adequacy decision

Under GDPR, transfer of data can take place after the Commission decides whether the third country, territory, specified sector within that third country or international organization ensures adequate level of data protection. This is called adequacy decision. A list of countries or international organizations which ensure adequate data protection shall be published in the Official Journal of the European Union and on the website by the Commission. Once data transfer conditions are found to be compliant with the Regulation, no specific authorization would be required for data transfer from the supervisory authorities. The commission would decide this by means of an "Implementing Act" specifying a mechanism for periodic review, its territorial and sectoral application and identification of supervisory authorities. Decisions of Commission taken under Art 25(6) of DPD shall remain in force. DPD also provides parameters for the same.

Sub-topics in this section

GDPR

DPD

Given in article

45

25

Conditions apply when transfers take place to

Third country or international organization

International organization not mentioned.

Functions of the commission

Take adequacy decisions

Same

Review the decision periodically every four years

Monitor developments on ongoing basis

Repeal, amend or suspend decision

Inform Member States if third country doesn't ensure adequate level of protection.

Similarly, member state has to inform the Commission.

Functions of Member State

Inform Commission if third country doesn't ensure adequate level of protection.

Take measures to comply with Commission's decisions

Prevent data transfer if Commission finds absence of adequate level of protection.

Factors, with respect to third country or international organization, to be considered while deciding adequacy of safeguards

Rule of law,

human rights, fundamental freedoms, access of public authorities to personal data,

data protection rules, rules for onward transfer of personal data to third country or international organization etc.

Circumstances surrounding data transfer operations: nature of data; purpose and duration of processing operation; rule of law, professional rules and security measures in third country; country of origin and final destination; professional rules and security measures;

Functioning of independent supervisory authorities, their powers of enforcing compliance with data protection rules and powers to assist and advise data subject to exercise their rights.

International commitments entered into.

Obligations under legally binding conventions.

Same

When adequate level of protection no longer ensues

The Commission, to the extent necessary: repeal, amend or suspend the decision.

This is to be done by the means of an implementing act.

No retroactive effect to take place

The member state will have to suspend data transfer if Commission finds absence of adequate level of protection.

Commission to enter into consultation with the third country or international organization to remedy the situation

Same

4.16.3 Transfers subject to appropriate safeguards

This article provides for a situation when the Commission takes no decision. (Mentioned above under Transfer on the basis of an adequacy decision). In this case, the controller or processor can transfer data to third country or international organization subject to certain conditions. Specific authorization from supervisory authorities is not required in this context. Procedure for the same has been mentioned.

Sub-topics in this section

GDPR

DPD

Given in article

46

When can data transfer take place

When appropriate safeguards are provided by the controller or processor;

AND

On condition that data subject enjoys enforceable rights and effective legal remedies for data safety.

Conditions to be fulfilled for providing appropriate safeguards without specific authorization from supervisory authority

Existence of legally binding and enforceable instrument between public bodies or authorities

Existence of Binding Corporate Rules

Adoption of Standard Protection Clauses adopted by the Commission

Adoption of Standard data protection clauses by supervisory authorities and approved by Commission.

Approved code of conduct along with binding and enforceable commitments of controller or processor in third country to apply appropriate safeguards and data subject's rights

OR

Approved certification mechanism along with binding and enforceable commitments of controller or processor in third country to apply appropriate safeguards and data subject's rights.

Conditions to be fulfilled for providing appropriate safeguards subject to authorization from competent authority

Existence of contractual clauses between:

Controller or Processor and

Controller, Processor or recipient of personal data (third party)

Provisions inserted in administrative arrangements between public authorities or bodies. Provisions to contain enforceable and effective data subject rights.

Consistency mechanism to be applied by supervisory authority

Unless amended, replaced or repealed, authorization to transfer given under DPD will remain valid when:

Third country doesn't ensure adequate level of protection but controller adduces adequate safeguards;

or

Commission decides that standard contractual clauses offer sufficient safeguards

4.16.4 Binding Corporate Rules

These are agreements that govern transfers between organizations within a corporate group

Sub-topics in this section

GDPR

DPD

Given in Article

47

Elements of Binding Corporate Rules

Legally binding

Apply to and are enforced by every member of group of undertakings or group of enterprises engaged in joint economic activity. Includes employees

Expressly confer enforceable rights on data subject over processing of personal data

What do they specify

Structure and contact details of group of undertakings

Data transfers or set of transfers including categories of personal data , type of processing, type of data subjects affected, identification of third countries

Legally binding nature

Application of general data protection principles

Rights of data subjects

Means to exercise those right

How the information on BCR is provided to data subjects

Tasks of data protection officer etc.

Complaint procedure

Mechanisms within the group of undertakings, group of enterprises for ensuring verification of compliance with BCR.

Eg. Data protection audits

Results of verification to be available to person in charge of monitoring compliance with BCR and to board of undertaking or Group of enterprises.

Should be available upon request to competent supervisory authority

Mechanism for reporting and recording changes to rules and reporting changes to supervisory authority

Cooperation mechanism with supervisory authority

Data protection training to personnel having access to personal data

Role of Commission

May specify format and procedures for exchange of information between controllers, processors and supervisory authorities for BCR

4.16.5 Transfers or disclosures not authorized by Union law

This Article lays down enforceability of decisions given by judicial and administrative authorities in third countries with regard to transfer or disclosure of personal data.

Sub-topics in this section

GDPR

DPD

Given in Article

48

Article concerns

Transfer of personal data under judgments of courts, tribunals, decision of administrative authorities in third countries.

When can data be transferred or disclosed

International agreement between requesting third country and member state or union.

E.g.: mutual legal assistance treaty

4.16.6 Derogations for specific situations

This Article comes into play in the absence of adequacy decision or appropriate safeguards or of binding corporate rules. Conditions for data transfer to a third country or international organization under such situations have been laid down.

Sub-topics in this section

GDPR

DPD

Given in Article

49

26

Conditions under which data transfer can take place

On obtaining Explicit consent of data subject after being informed of possible risks

On obtaining unambiguous consent of data subject to the proposed transfer

Transfer is necessary for conclusion or performance of contract.

The contract should be in the interest of data subject.

The contract is between the controller and another natural or legal person.

Contractual conditions are same.

DPD also includes implementation of pre contractual measures taken upon data subject's request.

Transfer is necessary in public interest

Same

Is necessary for establishment, exercise or defense of legal claims

Same

To protect vital interest of data subject or of other persons where data subject is physically or legally incapable of giving consent

Includes vital interest of data subject but doesn't include "other person". Condition for consent is also not included.

Transfer made from register under Union or Member State law to provide information to public and is open to consultation by public or person demonstrating legitimate interest.

Same

Conditions for transfer when even the above specific situations are not applicable

Transfer is not repetitive

Concerns limited number of data subjects

Necessary for compelling legitimate interests pursued by controller

Legitimate interests are not overridden by interests or rights and freedoms of data subject

Controller has provided suitable safeguards after assessing all circumstances surrounding data transfer

Controller to inform supervisory authority about the transfer

Controller to inform data subject of transfer and compelling legitimate interests pursued

Member may authorize transfer personal data to third country where controller adduces adequate safeguards for protection of privacy and fundamental rights and freedoms of individuals

4.17 International cooperation for protection of personal data

This Article lays down certain steps to be taken by Commissions and supervisory authorities for protection of personal data.

Sub-topics in this section

GDPR

DPD

Given in Article

50

Steps will include

Development of international cooperation mechanisms to facilitate enforcement of legislation for protection of personal data

Provide international mutual assistance in enforcement of legislation for protection of personal data

Engage relevant stakeholders for furthering international cooperation

Promote exchange and documentation of personal data protection legislation and practice

4.18 Remedies, Liability and Compensation

4.18.1 Right to lodge complaint with a supervisory authority

This article gives the data subject the right to seek remedy against unlawful processing of data. GDPR strengthens this right as compared to the one provided under DPD.

Sub-topics in this section

GDPR

DPD

Given in Article

77

28(4)

Right given

Right to lodge complaint

Under GDPR the data subject has been conferred the "right" specifically. This is not so in DPD.

DPD merely obliges the supervisory authority to hear claims concerning rights and freedoms.

Who can lodge complaint

Data subject

Any person or association representing that person

Complaint to be lodged before

Supervisory authority in the Member State of habitual residence, place of work or place of infringement

Supervisory authority

When can the complaint be lodged

When processing of personal data relating to data subject allegedly infringes on Regulation

When rights and freedom are to be protected while processing.

When national legislative measures to restrict scope of Regulations is adopted and processing is alleged to be unlawful.

Accountability

Complainant to be informed by Supervisory authority on progress and outcome of complaint and judicial remedy to be taken up

Complainant to be informed on outcome of claim or if check on unlawfulness has taken place

4.18.2 Right to an effective judicial remedy against supervisory authority

The concerned Article seeks to make supervisory authorities accountable by bringing proceedings against the authority before the courts. GDPR gives a specific right to the individual. DPD under Article 28(3) merely provides for appeal against decisions of supervisory authority in the courts.

Sub-topics in this section

GDPR

DPD

Given in Article

78 (1)

Who has the right

Every natural or legal person

When can the right be exercised

Against legally binding decision of supervisory authorities concerning the complainant

Sub-topics in this section

GDPR

DPD

Given in Article

78(2)

Who has the right

Data subject

When can the right be exercised

When the competent supervisory authority doesn't handle the complaint

Or

Doesn't inform data subject about progress / outcome of complaint within 3 months

The jurisdiction of court will extend to the territory of the Member State in which the supervisory authority is established (GDPR Art 78(3)). The supervisory authority is required to forward proceedings to the court if the decision was preceded by the Board's decision in the consistency mechanism. (GDPR 78(4))

4.18.3 Right to effective judicial remedy against a controller or processor

The data subject has been conferred with the right to approach the courts under certain circumstance. The GDPR confers the specific right while DPD provides for judicial remedy without using the word "right".

Sub-topics in this section

GDPR

DPD

Given in

Art 79

Recital 55

Right can be exercised when:

1. Data has been processed; and

2. Processing Results in infringement of rights; and

3. Infringement is due to non compliance of Regulation

Similar provisions provided under DPD:

When controller fails to respect the rights of data subjects and national legislation provides a judicial remedy.

Processors are not mentioned.

Jurisdiction of the courts

Proceedings can be brought before the courts of Member States wherein:

1. Controller or processor has an establishment

Or

2. Data Subject has habitual residence

Right cannot be exercised when

1. The controller or processor is a public authority of Member State

And

2. Is exercising its public powers

4.18.4 Right to compensation and liability

GDPR enables a person who has suffered damages to claim compensation as a specific right. DPD merely entitles the person to receive compensation. Although Liability provisions under GDPR and DPD are similar, the liability under GDPR is stricter as compared to DPD. This is because DPD exempts the processor from liability but GDPR does not. For example, DPD imposes liability on controllers only.

Sub-topics in this section

GDPR

DPD

Given in Article

82

23

Who can claim compensation

Any person who has

suffered material or non material damage

Similar provisions.

But DPD doesn't mention "material or non-material damage" specifically.

Right arises due to

Infringement of Regulation

Same

Right granted

Right to receive compensation

Same

Compensation has to be given by

Controller or processor

Compensation can be claimed only from controller

Liability of controller arises when

Damage is caused by processing due to infringement of regulation

Same

Liability of processor arises when

1. Processor has not complied with directions given to it under Regulation

OR

2. Processor has acted outside or contrary to lawful instructions of controller

Exemptions to controller or processor from liability

If there is proof that they are not responsible

Exemption for controller is same

Liability when more than one controller or processor cause damage

Each controller or processor to be held liable for entire damage

4.19 General conditions for imposing administrative fines

GDPR makes provision for imposition of administrative fines by supervisory authorities in case of infringement of Regulation. Such fines should be effective, proportionate and dissuasive. In case of minor infringement, "reprimand may be issued instead of a fine" [1]. Means of enforcing accountability of supervisory authority have been provided. If Member state law does not provide for administrative fines, then the fine can be initiated by the supervisory authority and imposed by courts. However, by 25 May 2018, Member States have to adopt laws that comply with this Article.

Sub-topics in this section

GDPR

DPD

Given in Article

83

Who can impose fines

Supervisory Authority

Fines to be issued against

Controllers or Processors

Parameters to be taken into account while determining administrative fines

Nature, gravity and duration of infringement

and

Nature scope or purpose of processing

and

Number of data subjects affected

and

Level of damage suffered

Intentional or negligent character of infringement

Action taken by controller or processor to mitigate damage suffered by data subjects

Degree of responsibility of con controller or processor. Technical and organizational measures implemented to be taken into account.

Relevant previous infringement

Degree of cooperation with supervisory authority

Categories of personal data affected

Manner in which supervisory authorities came to know of the infringement and

Extent to which the controller or processor notified the infringement

Whether corrective orders of supervisory authority under Art 58(2) have been issue before and complied with

Adherence to approved code of conduct under Art 40 or approved certification mechanisms under Art 42

Other aggravating or mitigating factors like financial benefits gained losses avoided etc.

If infringement is intentional or due to negligence of processor or controller

Total amount of administrative fine to not exceed amount specified for gravest infringement

Means checking power of supervisory authority to impose fines

Procedural safeguards under Member State or Union law.

Including judicial remedy and due process

Article 83 splits the amount of administrative fines according to obligations infringed by controllers, processors or undertakings. The first set of infringements may lead to imposition of fines up to 10,000,000 EUR or 2% of total worldwide turnover.

Sub-topics in this section

GDPR

DPD

Article

83(4)

Fine imposed

Up to 10,000,000 EUR

or

in case of undertaking,

2% of total worldwide turnover of preceding financial year, whichever is higher

Infringement of these provisions will cause imposition of fine (Provisions infringed)

Obligations of controller and processor under:

Art 8

Conditions applicable to child's consent in relation to information society services

Art 11

Processing which does not require identification

Art 25 to 39

General obligations , Security of personal data , Data Protection impact assessment and prior consultation

Art 42

Certification

Art 43

Certification bodies

Obligations of certification body under:

Art 42

Art 43

Obligations of monitoring body under:

Art 41(4)

Second set of infringements may cause the authority to impose higher fines up to 20,000,000 EUR or 4% of total worldwide turnover.

Sub-topics in this section

GDPR

DPD

Article

83(5)

Fine imposed

Up to 20,000,000 EUR

or

in case of undertaking,

4% of total worldwide turnover of preceding financial year, whichever is higher

Infringement of provisions that will cause imposition of fine (Provisions infringed)

Basic principles for processing and conditions for consent under:

Art 5

Principles relating to processing of personal data

Art 6

Lawfulness of processing

Art 7

Conditions for consent

Art 9

Processing of special categories of personal data

Data subject's rights under:

Art 12 to 22

Transfer of personal data to third country or international organization under:

Art 44 to 49

Obligations under Member State law adopted under Chapter IX

Non Compliance with supervisory authority's powers under provisions of Art 58:

Imposition of temporary or definitive limitation including ban on processing

(Art 58 (2)(f))

Suspension of data flows to third countries or international organization

(Art 58(2) (j))

Provide access to premises or data processing equipment and means (Art 58 (1) (f))

4.20 Penalties

Article 84 makes provision for penalties in case of infringement of Regulation.

The penalties must be effective, proportionate and dissuasive.

Sub-topics in this section

GDPR

DPD

Given in Article

84

When will penalty be imposed

In case of infringements that are not subject to administrative fines

Who imposes them

Member State

Responsibility of Member State

To lay down the law and ensure implementation.

To notify to the Commission, the law adopted, by 25 May 2018



[1] Recital 148 , GDPR

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