The General Data Protection Regulation (GDPR) is one of the most robust individual privacy rights frameworks enacted to date. The regulation went into effect on May 25, 2018 and covers any organization that deals with the personal data of a European citizen. It not only defines privacy and how to evaluate whether an organization is properly protecting it, but also sets out consequences with substantial financial penalties for non-compliance.
Charles Morgan, Partner and Technology Practice Lead at McCarthy Tetrault recently presented at a Canadian seminar on GDPR preparedness. According to Morgan, “The GDPR applies not only to EU-established organizations that process personal data, but also to non-EU established organizations that target or monitor EU data subjects in one of two ways: either a) by offering goods and services to EU data subjects (payment not required); or b) by monitoring the behavior of EU data subjects (whether as customers, potential customers or employees).”
This means that factors that are considered in order to determine whether an organization is “established” in the EU include whether the organization has a permanent local presence in an EU member state and whether it exercises a real and effective activity there, even a minimal one. For example, a company that has a sales representative, a mailbox and a bank account in an EU member state and that has a website offering goods in a local EU language would be subject to the GDPR.
For non-EU based establishments that process personal data of European data subjects, Morgan laid out the other factors that could establish a need for your organization to comply:
- Whether the business offers goods or services in an EU language or currency
- Whether the business allows EU data subjects to place orders in the local language
- Whether the business refers to EU customers when marketing its goods and services
- Other evidence may show intent to target EU data subjects including, for example, a business plan describing efforts to obtain EU customers
Examples of the above may include:
- A single physical location located in the EU
- A website with a country extension (e.g. .uk, .de, .dk)
- A published phone number with an EU country code
- An employee in the EU
- Processing an EU data subject in a CRM, website or Applicant Tracking System
- Accepting payment from an EU citizen
- Shipping product to an EU citizen
Of course, if any of the above situations apply to your company or could trigger exposure to the GDPR, evaluating the “surface area” of that exposure is important to discuss with knowledgeable legal counsel. Remember that there is still much gray area in the GDPR, and regular clarifications to the law continue to be released. It is important to monitor these clarifications closely in order to understand how the GDPR is to be interpreted for your own company.
If the GDPR does not apply to your company, you can still benefit from implementing a solution for transparency, notice and consent around consumer data handling. For one thing, a best practices privacy rights management system provides other advantages. To learn more, check out What if the GDPR does not apply to me?