GDPR- What it means to an Australian Business

GDPR- What it means to an Australian Business

What is GDPR?

 
At its core, GDPR is a new set of rules designed to give EU citizens more control over their personal data. It aims to simplify the regulatory environment for business so both citizens and businesses in the European Union can fully benefit from the digital economy
 

What is GDPR compliance?

 
Data breaches inevitably happen. Information gets lost, stolen or otherwise released into the hands of people who were never intended to see it — and those people often have malicious intent.
 
Under the terms of GDPR, not only will organisations have to ensure that personal data is gathered legally and under strict conditions, but those who collect and manage it will be obliged to protect it from misuse and exploitation, as well as to respect the rights of data owners – or face penalties for not doing so
 

What is personal data under the GDPR?

 
The types of data considered personal under the existing legislation include name, address, and photos. GDPR extends the definition of personal data so that something like an IP address can be personal data. It also includes sensitive personal data such as genetic data, and biometric data which could be processed to uniquely identify an individual.
 

What does it mean to an Australian Business?

 
The boundaries cant restrict today’s digital business. It spreads knowingly or unknowingly. Imagine an EU citizen subscribing, using your digital services which are developed, deployed in Australia still comes under GDPR regulation. So makes it more important for an Australian business to be compliant as well.
 

Difference between EU GDPR & Australian Privacy Act

 

EU GDPR Australian Privacy Act
Who does this apply to? Data processing activities of businesses, regardless of size, that are data processors or controllers Most Australian Government agencies, all private sector and not-for-profit organisations with an annual turnover of more than $3 million, all private health service providers and some small businesses.
What does it apply to? Personal data – any information relating to an identified or identifiable natural person: Art 4(1) Personal information (PI) – information or an opinion about an identified individual, or an individual who is reasonably identifiable: s 6(1)
Jurisdictional link Applies to data processors or controllers:

  • with an establishment in the EU, or
  • outside the EU, that offer goods or services to individuals in the EU or monitor the behaviour of individuals in the EU: Art 3
Applies to businesses:

  • incorporated in Australia, or
  • that ‘carry on a business’ in Australia and collect PI from Australia or hold PI in Australia: s 5B
Accountability and governance Controllers generally must:

  • implement appropriate technical and organisational measures to demonstrate GDPR compliance and build in privacy by default and design: Arts 5, 24, 25
  • undertake compulsory data protection impact assessments: Art 35
  • appoint data protection officers: Art 37
APP entities must take reasonable steps to implement practices, procedures and systems to ensure compliance with the APPs and to enable complaints: APP 1.2

Businesses are expected to appoint key roles and responsibilities for privacy management and to conduct privacy impact assessments for many new and updated projects

Consent Consent must be:

  • freely given, specific and informed, and
  • an unambiguous indication of the data subject’s wishes which, by a statement or by a clear affirmative action, signifies agreement to processing: Art 4(11)
Key elements:

  • the individual is adequately informed before giving consent, and has the capacity to understand and communicate consent
  • the consent is given voluntarily
  • the consent is current and specific: OAIC’s APP GLs
Data Breach notifications Mandatory DBNs by controllers and processors (exceptions apply): Arts 33-34 From 22 February 2018, mandatory reporting for breaches likely to result in real risk of serious harm
Individual rights Individual rights include:

  • right to erasure: Art 17
  • right to data portability: Art 20
  • right to object: Art 21
No equivalents to these rights.
However, business must take reasonable steps to destroy or de-identify PI that is no longer needed for a permitted purpose: APP 11.2. Where access is given to an individual’s PI, it must generally be given in the manner requested: APP 12.5
Overseas transfers Personal data may be transferred outside the EU in limited circumstances including:

  • to countries that provide an ‘adequate’ level of data protection
  • where ‘standard data protection clauses’ or ‘binding corporate rules’ apply
  • approved codes of conduct or certification in place: Chp V
Before disclosing PI overseas, a business must take reasonable steps to ensure that the recipient does not breach the APPs in relation to the information: APP 8 (exceptions apply). The entity is accountable for a breach of the APPs by the overseas recipient in relation to the information: s 16C (exceptions apply)
Sanctions Administrative fines of up to €20 million or 4% of annual worldwide turnover (whichever is higher): Art 83 Powers to work with entities to facilitate compliance and best practice, and investigative and enforcement powers: Parts IV and V

 

 

 

Ari
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