A Guide to Developing a Data Protection Policy
According to the General Data Protection Regulation (GDPR), every company needs to have Data Protection Goals. These goals also need to be translated into policies in areas that heavily process data. There are numerous policies one of which is Data Protection Policy which sets some of the criteria that a Data Protection Officer has to follow.
A company needs to also ensure that the principles of the GDPR are incorporated into their organizational structure. This is a step by step guide for how an organization can have compliant GDPR policies within their organization. It will start off with a memorandum to the Board of Directors informing them of what the GDPR will entail for the company. It will then give you a basic template of how to inform your employees about the collection and processing of their data.
Memorandum to Board of Directors
To the Board of Directors [add your Company Name] and its affiliates (Company):
The EU General Data Protection Regulation (GDPR) will become effective on 25 May 2018. The GDPR will bring considerable changes to data protection laws in the UK and across the European Economic Area (EEA). It will include significantly greater fines for breaches of up to €20 million or 4% of total worldwide annual group turnover. This memorandum summarises the need for a Company-wide programme (GDPR Compliance Programme), requiring the allocation of resources, for compliance with the GDPR.
Issues Concerning Data Protection Under The GDPR:
Under this section of data protection policy, you should explain what type of data is being collected and processed for e.g. if personal data is held by the Company relating to customers, employees or any other parties. The second part in this section should be an example of a map of Personal Data Flow. You need to clearly lay out how the data travels within the company and record whoever touches this data no matter how briefly. If this data is to leave the borders of the country your company is located in, make sure to mention that as well since it will require signing a Data Protection Agreement with your Vendors (international and local ones).
Reiterate in concrete terms what failure to comply would mean for the Company and the Board of Directors. You should also give a brief description of “Personal Data” as defined by the GDPR.
Here’s an example of how you can add both:
Personal data is defined broadly and comprises data relating to any living individual who can be identified from that data. Personal data and includes:
- Social security numbers.
- Telephone numbers.
- Health information of, for example, customers and employees.
There are many potential ramifications of failure to comply with the GDPR, including:
- Prosecution of or regulatory enforcement action against the Company, resulting in substantial penalties in European Economic Area (EEA) jurisdictions, including the UK, of up to 4% of an annual worldwide turnover of the preceding financial year or 20 million euros (whichever is the greater).
- Adverse publicity, potentially leading to reputational damage and lost customer trust.
- Missed opportunities and wasted resources.
- A variety of sanctions in different jurisdictions.
- Increased scrutiny from data protection authorities whose confidence and powers are increasing substantially under the GDPR.
- Civil liability or punitive damages for employment-related breaches.
- Criminal liability for directors and senior managers resulting in imprisonment and substantial penalties.
- Critical system delays and failures.
- Orders issued by the Information Commissioner's Office in the UK, and data protection authorities in other key markets, that seriously impact business. Investigative powers include a power to carry out audits, as well as to require information to be provided, and to obtain access to premises.
- Business continuity issues.
- Becoming embroiled in litigation and its attendant time, effort and expense.
An individual has a fundamental right in the UK and across the EEA to have their personal data protected and their personal data may only be processed (that is, obtained, recorded, held, used or disclosed) under certain circumstances. This has a wide impact on Company business.
The GDPR Compliance Programme:
A well-constructed and comprehensive Company-wide GDPR Compliance Programme can provide a solution to these various competing interests and represents an effective risk management tool. It is essential for compliance and for the purposes of informing your employees, customers, vendors, business partners, regulators and the courts that your company is, in fact, committed to the GDPR principles of data protection.
Board's duty to know about and oversee the GDPR Compliance Programme:
You need to inform the board of what their duties and obligations are. Here’s an example of how you can do this in a comprehensive manner.
The Board has a duty to know about the content and operation of the GDPR Compliance Programme and to oversee its implementation and effectiveness appropriately. The GDPR's new accountability principle requires data controllers to be able to demonstrate compliance with the GDPR by showing the supervisory authority (the Information Commissioner's Office in the UK) and individuals how the data controller complies, on an ongoing basis, through evidence of:
- Internal policies and processes that comply with the GDPR's requirements.
- The implementation of the policies and processes into the organization's activities.
- Effective internal compliance measures.
- External controls.
Failure to comply with the accountability principle may result in the maximum fines of up to €20 million or 4% of total worldwide annual group turnover.
Implementing the GDPR Compliance Programme:
The pre-requisite for this section is to already have an idea of what your implementation plan will look like. If you do not yet have a plan on how you will ensure compliance within your company, make sure you make one first. You can also follow the steps below to make a skeleton of this plan. It is essential that you at least appointed a Data Protection Officer (DPO) have your Records of Processing Activities (RPAs) for both having a Data Flow Map as well as the basis of your plan. Here’s what you can do and subsequently communicate to your Board of Directors.
Data Protection Officer (DPO)
Under the GDPR it is now mandatory for the Company to appoint a data protection officer (DPO), reporting to the Board. The DPO's role is to provide the knowledge, expertise, day-to-day commitment and independence to properly advise the Company of its duties and conduct compliance activities in relation to the GDPR.
However, taking into account the complexity and risks associated with the GDPR, we should consider carefully whether we should appoint a DPO, in any case, to report to the Board. The DPO would be responsible for providing the knowledge, expertise, day-to-day commitment and independence to properly advise the Company of its duties and conduct compliance activities in relation to the GDPR.
A co-ordinated chain of command (in which the Board is designated as having ultimate responsibility) will need to be developed, together with written reporting procedures, authority levels, and protocols, including seeking and complying with legal advice.
The Company should consider the establishment of a working group, drawing on stakeholders from across the business, to take responsibility for the day-to-day management of the GDPR Compliance Programme.
Standards and Procedures
- Call-center conversations.
- Online account and job application forms.
- Business acceptance procedures.
The Company will need to carefully review existing procedures in relation to obtaining an individual's consent as a legal basis for processing personal data. For example, it will need to ensure that any consent obtained indicates affirmative agreement from the individual (opt-in) (for example, ticking a blank box). Mere acquiescence (for example, failing to un-tick a pre-ticked box) does not constitute valid consent under the GDPR. Furthermore, the Company must demonstrate that this explicit consent has been obtained, ensure that an individual can easily withdraw their consent at any time.
The Company must also be in a position at all times to respond quickly to any data subject's request (such as for a copy of all of the personal data held or to erase all such personal data). This is likely to require substantial modifications to the Company's technological infrastructure and its organizational processes.
Other channels may be needed in certain circumstances, for example, the staff handbook regarding personal data collected from employee monitoring.
A written and comprehensive information security programme is needed to protect the security, confidentiality, and integrity of personal data held. It should set out action plans for any security breach, disaster recovery, and data restoration.
The Company should develop appropriate contractual strategies and have access to appropriate templates as a risk management tool.
Under the GDPR, the Company will also be required to implement "privacy by design" (for example, when creating new products, services or other data processing activities) and "privacy by default" (for example, data minimization). It must also carry out "privacy impact assessments" before carrying any processing that uses new technologies (and taking into account the nature, scope, context, and purposes of the processing) that is likely to result in a high risk to data subjects, takes place.
The GDPR also requires businesses to notify the supervisory authority of all data breaches without undue delay and where feasible within 72 hours. The Company will, therefore, need to look carefully at its data breach response plans and procedures.
The above represents only a short synopsis of the requirements under the GDPR. There are many more that are not included in this note for the sake of brevity. Getting prepared for compliance with all the compliance requirements will need considerable planning across the Company.
Financial, technological and human resources should be sufficient to reasonably prevent and detect non-compliance and promote compliance with the GDPR.
Taking into account the number of employees, assets, turnover, Company business activities, a budget for [Insert Year] of £[Insert Amount] is proposed, broken down as follows: [Insert Breakdown Of Budget].
- Training and Enforcement
Effective compliance training programmes are required for personnel at all levels, including directors, heads of departments and key Company service providers. Bearing in mind the above factors, a formally documented training programme with employee evaluation and attendance certification should be put in place as soon as possible.
Serious misconduct should be addressed with appropriate disciplinary action, regardless of seniority. An anonymous whistle-blowing mechanism should be considered, but legal a should be sought before implementation in the UK and any other countries in which the Company carries on business.
From time to time, the GDPR Compliance Programme should be reviewed and updated in the light of new laws and business activities and changes to data flows and the introduction of new processing activities.
Informing your Employees
To establish data protection as a pillar of the organization and to ensure that all employees are on board and aware would set the premise for the culture and workings of the company in general. After informing your Board of Directors, it is also important that you conceptualize and get your agreements signed by your employees. This would work both as an agreement as well as an awareness step.
Here’s a template for your employees:
Privacy Notice to Staff
- What is the purpose of this document (Data Protection Policy)?
You have legal rights about the way your personal data is handled by us, [Insert Name]. We are committed to protecting the privacy and security of your personal information.
This privacy notice describes how we collect and use personal information about you during and after your working relationship with us. It applies to all employees, workers, and contractors. This notice does not form part of any contract of employment or another contract to provide services. We may update this notice at any time.
During your employment or engagement by us, we collect, store and process personal data about you. To comply with the law and to maintain confidence in our business, we acknowledge the importance of correct and lawful treatment of this data.
It is important that you read this notice, along with any other privacy notice we may provide on specific occasions when we are collecting or processing personal information about you. This gives you information about how and why we are using such information. All people working in or with our business are obliged to comply with this policy when processing personal data.
- Our Role
We are a "data controller". This means that we are responsible for deciding how we hold and use personal information about you. Data protection legislation requires to give you the information contained in this privacy notice.
- Data protection principles
We will comply with data protection law. This says that the personal information we hold about you must be:
- Used lawfully, fairly and in a transparent way.
- Collected only for valid purposes that we have explained to you clearly and not used in any way that is incompatible with those purposes.
- Relevant to the purposes we have told you about and limited to those purposes only.
- Accurate and kept up to date.
- Kept only for such time as is necessary for the purposes we have told you about.
- Kept securely.
- The kind of information we hold about you
Personal data, or personal information, means any information about an individual from which that person can be identified. It does not include data where the identity has been removed (anonymous data). There are "special categories" of more sensitive personal data that require a higher level of protection.
We may collect, store, and use the following categories of personal information about you:
[add all categories]
- How is your personal information collected?
Usually, we collect personal information about employees, workers, and contractors through the application and recruitment process, either directly from candidates or sometimes from an employment agency or background check provider. We may sometimes collect additional information from third parties including former employers, credit reference agencies or other background check agencies [list them here, if any].
We will collect additional personal information during work-related activities throughout the period of you working for us.
- How we will use information about you
We will use your personal information only when the law allows us to. Most commonly, we will use your personal information in the following circumstances:
- Where we need to perform the contract that applies to our working relationship.
- Where we need to comply with a legal obligation.
- Where it is necessary for our legitimate interests (or those of a third party) and your interests and fundamental rights do not override those interests.
We may also use your personal information in the following situations, which are likely to be rare:
- Where we need to protect your interests (or someone else's interests).
- Where it is needed in the public interest or for official purposes.
- Situations in which we will use your personal information
We need all the categories of information in the list above (see the kind of information we hold about you) primarily to allow us to perform our contract with you and to enable us to comply with legal obligations. In some cases, we may use your personal information for our legitimate interests or those of third parties, provided that your interests and fundamental rights do not override those interests. The situations in which we will process your personal information are as follows [add all the situations in which you will use this data. Some examples would be ascertaining the terms of work, deciding about employment or monitoring equal opportunities metric].
Some of the above grounds for processing will overlap and there may be several grounds that justify our use of your personal information.
- If you fail to provide personal information
If you do not provide certain information when we ask for it, we may not be able to perform the contract that applies to our working relationship with you (such as paying you or providing a benefit), or we may not be able to comply with our legal obligations (such as to ensure the health and safety of our workers).
- Change of purpose
We will only use your personal information for the purposes that we have collected it for unless we need to use it for another reason and that reason is reasonable and compatible with the original purpose. If we need to use your personal information for an unrelated purpose, we will notify you and we will explain the legal basis that allows us to do so.
We may process your personal information without your knowledge or consent, in compliance with the above rules, where this is required or allowed by law.
- How we use particularly sensitive personal information
"Special categories" of particularly sensitive personal information require higher levels of protection. We need to have further justification for collecting, storing and using this type of personal information. We may process special categories of personal information in the situations below:
- In limited circumstances, with your clear written consent.
- Where we need to carry out our legal obligations and in line with our data protection policy or other policy that applies to such information.
- Where it is needed in the public interest, such as for equal opportunities monitoring [or in relation to our occupational pension scheme], and in line with our data protection policy or other policy that applies to such information.
- Where it is needed to assess your working capacity on health grounds, subject to appropriate confidentiality safeguards.
Very occasionally, we may process this type of information where it is needed in relation to legal claims or where it is needed to protect your interests (or someone else's interests) and you are not capable of giving your consent, or where you have already made the information public.
- Our obligations as an employer
We will use your particularly sensitive personal information in the following ways:
- We will use information relating to leaves of absence, which may include sickness absence or family-related leave and related pay, to comply with employment and other laws.
- We will use information about your physical or mental health, or disability status, to ensure your health and safety in the workplace and to assess your fitness to work, to provide appropriate workplace adjustments, to monitor and manage sickness absence and to administer benefits.
- We will use information about your race or national or ethnic origin, religious, philosophical or moral beliefs, or your sex life or sexual orientation, to ensure meaningful equal opportunity monitoring and reporting.
- We will use trade union membership information to pay trade union premiums, register the status of a protected employee and comply with employment law obligations.
- List any other circumstances where you may process personal data that reveals Racial or ethnic origin; political opinions; religious and philosophical beliefs; trade union membership; genetic data; biometric data; health data; or data about an individual’s sex life and sexual orientation.
- Do we need your consent?
We do not need your consent if we use special categories of your personal information in accordance with our written policy to carry out our legal obligations or exercise specific rights in the field of employment law. In limited circumstances, we may approach you for your written consent to allow us to process certain particularly sensitive data. If we do so, we will give you full details of the information that we would like and the reason we need it, so that you can consider carefully whether you wish to consent. You should be aware that it is not a condition of your contract with us that you agree to any request for consent from us.
- Information about criminal convictions
We may only use information relating to criminal convictions where the law allows us to do so. This will usually be where such processing is necessary to carry out our obligations and provided we do so in line with our data protection policy or other policy that applies to such information.
Very occasionally, we may use information relating to criminal convictions where it is necessary, in relation to legal claims, where it is necessary to protect your interests (or someone else's interests) and you are not capable of giving your consent, or where you have already made the information public
We [envisage OR do not envisage] that we will hold information about criminal convictions.
[We will only collect information about criminal convictions if it is appropriate given the nature of the role and where we are legally able to do so.] [Where appropriate, we will collect information about criminal convictions as part of the recruitment process or we may be notified of such information directly from you while you are working for us.] [We will use information about criminal convictions and offences in the following ways: [add the list here]
- Automated decision-making
Automated decision-making takes place when an electronic system uses personal information to make a decision without human intervention. We can use automated decision-making in the following circumstances:
- Where we have notified you of the decision and given you 21 days to request a reconsideration.
- Where it is necessary to perform the contract with you and appropriate measures are in place to safeguard your rights.
- In limited circumstances, with your explicit written consent and where appropriate measures are in place to safeguard your rights.
If we make an automated decision based on any particularly sensitive personal information, we must have either your explicit written consent or it must be justified in the public interest, and we must also put in place appropriate measures to safeguard your rights.
You will not be subject to decisions that will have a significant impact on you based solely on automated decision-making unless we have a lawful basis for doing so and we have notified you.
In case, no automated decision is made at your company, use this: [We do not envisage that any decisions will be taken about you using automated means, however, we will notify you in writing if this position changes.]
- Data sharing
We may have to share your data with third parties, including third-party service providers and other entities in the group.
We require third parties to respect the security of your data and to treat it in accordance with the law.
We may transfer your personal information outside the EU.
If we do, you can expect a similar degree of protection in respect of your personal information
- Why might you share my personal information with third parties?
We may share your personal information with third parties where required by law, where it is necessary to administer the working relationship with you or where we have another legitimate interest in doing so.
- Which third-party service providers process my personal information?
"Third parties" includes third-party service providers (including contractors and designated agents) and other entities within our group. The following activities are carried out by third-party service providers: payroll, pension administration, benefits provision and administration, IT services OR The following third-party service providers process personal information about you for the following purposes: [add purposes].
- How secure is my information with third-party service providers and other entities in our group?
All our third-party service providers and other entities in the group are required to take appropriate security measures to protect your personal information in line with our policies. We do not allow our third-party service providers to use your personal data for their own purposes. We only permit them to process your personal data for specified purposes and in accordance with our instructions.
- When might you share my personal information with other entities in the group?
We will share your personal information with other entities in our group as part of our regular reporting activities on company performance, in the context of a business reorganization or group restructuring exercise, for system maintenance support and the hosting of data [Describe other known activities].
- What about other third parties?
We may share your personal information with other third parties, for example in the context of the possible sale or restructuring of the business. We may also need to share your personal information with a regulator or to otherwise comply with the law.
- Transferring information outside the EU (use only if it applies to your company)
We may transfer the personal information we collect about you to the following country/countries outside the EU [List companies here] to perform our contract with you. There [is OR is not] an adequacy decision by the European Commission in respect of [that OR those] [country OR countries]. This means that the [country OR countries] to which we transfer your data are [deemed OR not deemed] to provide an adequate level of protection for your personal information.
However, to ensure that your personal information does receive an adequate level of protection we have put in place the following appropriate measures to ensure that your personal information is treated by those third parties in a way that is consistent with and which respects the EU and UK laws on data protection: [Specify measure, for example, Binding corporate rules]. If you require further information about [this OR these] protective measure[s], [you can request it from [Position] OR it is available [On the intranet/Provide link here].
- Data security
We have put in place measures to protect the security of your information. Details of these measures are available [upon request OR on the intranet].
Third parties will only process your personal information on our instructions and where they have agreed to treat the information confidentially and to keep it secure
We have put in place appropriate security measures to prevent your personal information from being accidentally lost, used or accessed in an unauthorized way, altered or disclosed. In addition, we limit access to your personal information to those employees, agents, contractors and other third parties who have a business need to know. They will only process your personal information on our instructions and they are subject to a duty of confidentiality. [Details of these measures may be obtained from [Position].]
We have put in place procedures to deal with any suspected data security breach and will notify you and any applicable regulator of a suspected breach where we are legally required to do so.
- Data retention
- How long will you use my information for?
We will only retain your personal information for as long as necessary to fulfill the purposes we collected it for, including for the purposes of satisfying any legal, accounting, or reporting requirements. [Details of retention periods for different aspects of your personal information are available in our retention policy which is available from [[Position] OR [The intranet/Provide Link]]. To determine the appropriate retention period for personal data, we consider the amount, nature, and sensitivity of the personal data, the potential risk of harm from unauthorised use or disclosure of your personal data, the purposes for which we process your personal data and whether we can achieve those purposes through other means, and the applicable legal requirements.
In some circumstances, we may anonymize your personal information so that it can no longer be associated with you, in which case we may use such information without further notice to you. Once you are no longer an employee, worker or contractor of the company we will retain and securely destroy your personal information in accordance with [our data retention policy OR applicable laws and regulations].
- Rights of access, correction, erasure, and restriction
- Your duty to inform us of changes
It is important that the personal information we hold about you is accurate and current. Please keep us informed if your personal information changes during your working relationship with us.
- Your rights in relation to personal information
Under certain circumstances, by law, you have the right to:
- Request access to your personal information (commonly known as a "data subject access request"). This enables you to receive a copy of the personal information we hold about you and to check that we are lawfully processing it.
- Request correction of the personal information that we hold about you. This enables you to have any incomplete or inaccurate information we hold about you corrected.
- Request that your personal information is erased. This allows you to ask us to delete or remove personal information where there is no good reason for us continuing to process it. You also have the right to ask us to stop processing personal information where we are relying on a legitimate interest and there is something about your situation that makes you want to object to processing on this ground.
- Request the restriction of processing of your personal information. This enables you to ask us to suspend the processing of personal information about you, for example, if you want us to establish its accuracy or the reason for processing it.
- Request the transfer of your personal information to another party.
If you want to review, verify, correct or request erasure of your personal information, object to the processing of your personal data or request that we transfer a copy of your personal information to another party, please contact [Position] in writing.
- No fee usually required
You will not have to pay a fee to access your personal information (or to exercise any of the other rights). However, we may charge a reasonable fee if your request for access is clearly unfounded or excessive. Alternatively, we may refuse to comply with the request in such circumstances.
- What we may need from you
We may need to request specific information from you to help us confirm your identity and ensure your right to access the information (or to exercise any of your other rights). This is another appropriate security measure to ensure that personal information is not disclosed to any person who has no right to receive it.
- Right to withdraw consent
In the limited circumstances where you may have provided your consent to the collection, processing, and transfer of your personal information for a specific purpose, you have the right to withdraw your consent for that specific processing at any time. To withdraw your consent, please contact [Position]. Once we have received notification that you have withdrawn your consent, we will no longer process your information for the purpose or purposes you originally agreed to, unless we have another legitimate basis for doing so in law.
- [Data protection officer]
[We have appointed a [data protection officer (DPO) OR data privacy manager] to oversee compliance with this privacy notice. If you have any questions about this privacy notice or how we handle your personal information, please contact the [DPO OR data privacy manager]. You have the right to make a complaint at any time to the Information Commissioner's Office (ICO), the UK supervisory authority for data protection issues.]
- Changes to this privacy notice
We reserve the right to update this privacy notice at any time, and we will provide you with a new privacy notice when we make any substantial updates. We may also notify you in other ways from time to time about the processing of your personal information.
If you have any questions about this privacy notice, please contact [Position and Contact Details].
I, ___________________________ (employee/worker/contractor name), acknowledge that on _________________________ (date), I received a copy of [EMPLOYER]'s Privacy Notice for employees, workers and contractors and that I have read and understood it.