The European General Data Protection Regulation - most important definitions and useful clarifications
The new European General Data Protection Regulation – better known as “GDPR” – will have a significant impact on your organization. To properly identify and acknowledge the impact of the GDPR on your organization, a good understanding of some key GDPR-related concepts is essential.
We therefore listed the 26 definitions of the GDPR (ref. Article 4 of the GDPR) and also added, where deemed useful, some practical clarifications:
1) 'Personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
In practice: Examples of personal data are (not-limitative) a person's name, picture, e-mail address (both private and professional), fingerprints, but also IP-addresses, cookies and pseudonymized data.
In practice: Data out of scope of the GDPR are (limitative) data processed by individuals solely for personal/household activities (e.g. list of phone numbers / e-mail addresses of private contacts in your private cell phone or private e-mail application), personal data of deceased persons, data processed for national security purposes and anonymized data.
2) ‘Processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
In practice: Archiving performance reports of your direct reports as a department manager in your desk cabinet, is also categorized as processing personal data. In practice, the goal should be centralizing such data as much as possible (for example at the cabinet of the HR department) and limiting the read/edit access to authorized personnel (such as the department head).
3) ‘Restriction of processing’ means the marking of stored personal data with the aim of limiting their processing in the future;
In practice: the main idea of the GDPR is that personal data processing should be limited to what is absolutely necessary. This applies not only to the type of personal data, but also to the type of processing and to the processing period.
4) ‘Profiling’ means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyze or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behavior, location or movements.
In practice: Insurance brokers analyze “big data” to get insight into their car insurance customers to set the right price. In the future, this will probably only be possible when:
- Either explicit permission / consent is obtained from the person whose personal data are processed;
- Or when the used customer data are anonymized or pseudonymized.
5) ‘Pseudonymisation’ means the processing of personal data in such a manner that the personal data can no longer be attributed to a specific data subject without the use of additional information, provided that such additional information is kept separately and is subject to technical and organizational measures to ensure that the personal data are not attributed to an identified or identifiable natural person.
In practice: The difference between anonymized personal data (out of scope from the GDPR) and pseudonymized personal data (within scope of the GDPR) is explained by the concept (ir)reversibility. Pseudonymized data can be “unlocked” and become readable again if the right key is available, allowing tracing the data back to the individual. This is no longer possible with anonymized data.
6) ‘Filing system’ means any structured set of personal data which are accessible according to specific criteria, whether centralized, decentralized or dispersed on a functional or geographical basis.
7) ‘Controller’ means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, the controller or the specific criteria for its nomination may be provided for by Union or Member State law.
8) ‘Processor’ means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.
In practice: Organizations often appeal to external payroll providers for their payroll administration. In such cases, the organization becomes the data controller because they determine the purpose and the resources of the processing. The external payroll administrator acts as the data processor: they will execute the salary calculations and provide the outcome of the calculations to the organization / the data controller.
9) ‘Recipient’ means a natural or legal person, public authority, agency or another body, to which the personal data are disclosed, whether a third party or not. However, public authorities which may receive personal data in the framework of a particular inquiry in accordance with Union or Member State law shall not be regarded as recipients; the processing of those data by those public authorities shall be in compliance with the applicable data protection rules according to the purposes of the processing.
10) ‘Third party’ means a natural or legal person, public authority, agency or body other than the data subject, controller, processor and persons who, under the direct authority of the controller or processor, are authorized to process personal data.
In practice: Certain public security institutions have, as part of a judicial investigation, the permission to collect and analyze certain personal data without the consent of the involved individual (also known as the “data subject”). A fitting example is the installation of a wiretap with approval of the Justice department.
11) ‘Consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her.
In practice: An implicit permission or consent will no longer be considered as a valid processing ground, which is contrary to the current legislation. Pre-ticked boxes to obtain consent will no longer be allowed: the data subject has to tick the box him/herself (or should be able to leave the tick box empty).
12) ‘Personal data breach’ means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, personal data transmitted, stored or otherwise processed.
13) ‘Genetic data’ means personal data relating to the inherited or acquired genetic characteristics of a natural person which give unique information about the physiology or the health of that natural person and which result, in particular, from an analysis of a biological sample from the natural person in question.
14) ‘Biometric data’ means personal data resulting from specific technical processing relating to the physical, physiological or behavioral characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data.
15) ‘Data concerning health’ means personal data related to the physical or mental health of a natural person, including the provision of health care services, which reveal information about his or her health status.
16) ‘Main establishment’ means:
- As regards a controller with establishments in more than one Member State, the place of its central administration in the Union, unless the decisions on the purposes and means of the processing of personal data are taken in another establishment of the controller in the Union and the latter establishment has the power to have such decisions implemented, in which case the establishment having taken such decisions is to be considered to be the main establishment;
- As regards a processor with establishments in more than one Member State, the place of its central administration in the Union, or, if the processor has no central administration in the Union, the establishment of the processor in the Union where the main processing activities in the context of the activities of an establishment of the processor take place to the extent that the processor is subject to specific obligations under this Regulation.
17) ‘Representative’ means a natural or legal person established in the Union who, designated by the controller or processor in writing pursuant to Article 27, represents the controller or processor with regard to their respective obligations under this Regulation.
In practice: In case an organization without a legal representation in the European Union is processing personal data of data subjects based in the EU (as a data controller or as a data processor), this organization will be able to appoint a EU representative with proper GDPR expertise to represent the organization within the context of the GDPR in the European Union.
18) ‘Enterprise’ means a natural or legal person engaged in an economic activity, irrespective of its legal form, including partnerships or associations regularly engaged in an economic activity.
19) ‘Group of undertakings’ means a controlling undertaking and its controlled undertakings.
20) ‘Binding corporate rules’ means personal data protection policies which are adhered to by a controller or processor established on the territory of a Member State for transfers or a set of transfers of personal data to a controller or processor in one or more third countries within a group of undertakings, or group of enterprises engaged in a joint economic activity.
In practice: If an EU organization is exchanging personal data with other group companies located in countries with a sub-par level of personal data protection rules, they must draft a company policy on the transfer of personal data between group entities.
21) ‘Supervisory authority’ means an independent public authority which is established by a Member State pursuant to Article 51.
In practice: The “Privacycommissie” in Belgium, the “Autoriteit Persoonsgegevens” in The Netherlands, the “Commission nationale de l'informatique et des libertés” (CNIL) in France, …
22) ‘Supervisory authority concerned’ means a supervisory authority which is concerned by the processing of personal data because:
- The controller or processor is established on the territory of the Member State of that supervisory authority;
- Data subjects residing in the Member State of that supervisory authority are substantially affected or likely to be substantially affected by the processing; or
- A complaint has been lodged with that supervisory authority.
23) ‘Cross-border processing’ means either:
- Processing of personal data which takes place in the context of the activities of establishments in more than one Member State of a controller or processor in the Union where the controller or processor is established in more than one Member State; or
- Processing of personal data which takes place in the context of the activities of a single establishment of a controller or processor in the Union but which substantially affects or is likely to substantially affect data subjects in more than one Member State.
24) ‘Relevant and reasoned objection’ means an objection to a draft decision as to whether there is an infringement of this Regulation, or whether envisaged action in relation to the controller or processor complies with this Regulation, which clearly demonstrates the significance of the risks posed by the draft decision as regards the fundamental rights and freedoms of data subjects and, where applicable, the free flow of personal data within the Union.
25) ‘Information society service’ means a service as defined in point (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council.
26) ‘International organization’ means an organization and its subordinate bodies governed by public international law, or any other body which is set up by, or on the basis of, an agreement between two or more countries.
If you would have any additional questions regarding this article or on any other GDPR related matters, please do not hesitate to contact us.
Frederik Vervoort (Certified Data Protection Officer) – June 15th, 2017