John Ashcroft and Company General Data Protection Regulation (GDPR) 2018
These are the Twelve Steps we have undertaken to ensure we are adequately prepared for the implementation of GDPR in May 2018. In this we have followed the guidelines in the "Preparing for the General Data Protection Regulation (GDPR) "12 steps to take now published by the Information Commissioners Office (ICO)." The PDF download is available from the ICO Web site
In addition we place reliance on "legitimate interest" as the sixth test of compliance. Below we identify the guidelines we have used for legitimate interest and the tests of legitimate interest we have applied.
1 Awareness
You should make sure that decision makers and key people in your organisation are aware that the law is changing to the GDPR. They need to appreciate the impact this is likely to have.
DONE
2 Information we hold
You should document what personal data you hold, where it came from and who you share it with. You may need to organise an information audit. DONE
3 Communicating privacy information
You should review your current privacy notices and put a plan in place for making any necessary changes in time for GDPR implementation.
DONE
4 Individuals’ rights
You should check your procedures to ensure they cover all the rights individuals have, including how you would delete personal data or provide data electronically and in a commonly used format.
The GDPR includes the following rights for individuals:
the right to be informed;
the right of access;
the right to rectification;
the right to erasure;
the right to restrict processing;
the right to data portability;
the right to object; and
the right not to be subject to automated decision-making including profiling.
DONE
5 Subject access requests
You should update your procedures and plan how you will handle requests within the new timescales and provide any additional information.
DONE
6 Lawful basis for processing personal data
You should identify the lawful basis for your processing activity in the GDPR, document it and update your privacy notice to explain it.
DONE
7 Consent
You should review how you seek, record and manage consent and whether you need to make any changes. Refresh existing consents now if they don’t meet the GDPR standard.
DONE
8 Children
You should start thinking now about whether you need to put systems in place to verify individuals’ ages and to obtain parental or guardian consent for any data processing activity.
DONE
9 Data breaches
You should make sure you have the right procedures in place to detect, report and investigate a personal data breach.
DONE
10 Data Protection by Design and Data Protection Impact Assessments
You should familiarise yourself now with the ICO’s code of practice on Privacy Impact Assessments as well as the latest guidance from the Article 29 Working Party, and work out how and when to implement them in your organisation.
DONE
11 Data Protection Officers
You should designate someone to take responsibility for data protection compliance and assess where this role will sit within your organisation’s structure and governance arrangements. You should consider whether you are required to formally designate a Data Protection Officer.
DONE
12 International
If your organisation operates in more than one EU member state (ie you carry out cross-border processing), you should determine your lead data protection supervisory authority. Article 29 Working Party guidelines will help you do this.
DONE
Legitimate Interest
Legitimate interests is the most flexible lawful basis for processing, but you cannot assume it will always be the most appropriate. It is likely t o be most appropriate where you use people’s data in ways they would reasonably expect and which have a minimal privacy impact, or where there is a compelling justification for the processing. If you choose to rely on legitimate interests, you are taking on extra responsibility for considering and protecting people’s rights and interests.
Tests of Legitimate Interest
There are three elements to the legitimate interests basis. It helps to think of this as a three-part test. You need to:
◦ identify a legitimate interest;
◦ show that the processing is necessary to achieve it; and
◦ balance it against the individual’s interests, rights and freedoms.
The legitimate interests can be your own interests or the interests of third parties. They can include commercial interests, individual interests or broader societal benefits. The processing must be necessary. If you can reasonably achieve the same result in another less intrusive way, legitimate interests will not apply.
You must balance your interests against the individual’s. If they would not reasonably expect the processing, or if it would cause unjustified harm, their interests are likely to override your legitimate interests. Keep a record of your legitimate interests assessment (LIA) to help you demonstrate compliance if required. You must include details of your legitimate interests in your privacy information.
Legitimate Impact Assessment Test Part I
We have checked that legitimate interests is the most appropriate basis.
We understand our responsibility to protect the individual’s interests.
We have conducted a legitimate interests assessment (LIA) and kept a record of it, to ensure that we can justify our decision.
We have identified the relevant legitimate interests.
We have checked that the processing is necessary and there is no less intrusive way to achieve the same result.
We have done a balancing test, and are confident that the individual’s interests do not override those legitimate interests.
We only use individuals’ data in ways they would reasonably expect, unless we have a very good reason.
We are not using people’s data in ways they would find intrusive or which could cause them harm, unless we have a very good reason.
If we process children’s data, we take extra care to make sure we protect their interests.
We have considered safeguards to reduce the impact where possible.
We have considered whether we can offer an opt out.
If our LIA identifies a significant privacy impact, we have considered whether we also need to conduct a DPIA.
We keep our LIA under review, and repeat it if circumstances change.We include information about our legitimate interests in our privacy information.
Legitimate Impact Assessment Test Part II
1. Purpose test: are you pursuing a legitimate interest?
2. Necessity test: is the processing necessary for that purpose?
3. Balancing test: do the individual’s interests override the legitimate interest?
How can we apply legitimate interests in practice?
If you want to rely on legitimate interests, you can use the three-part test to assess whether it applies. We refer to this as a legitimate interests assessment (LIA) and you should do it before you start the processing.
An LIA is a type of light-touch risk assessment based on the specific context and circumstances. It will help you ensure that your processing is lawful. Recording your LIA will also help you demonstrate compliance in line with your accountability obligations under Articles 5(2) and 24. In some cases an LIA will be quite short, but in others there will be more to consider.
First, identify the legitimate interest(s). Consider:
• Why do you want to process the data – what are you trying to achieve?
• Who benefits from the processing? In what way?
• Are there any wider public benefits to the processing?
• How important are those benefits?
• What would the impact be if you couldn’t go ahead?
• Would your use of the data be unethical or unlawful in any way?
Second, apply the necessity test. Consider:
• Does this processing actually help to further that interest?
• Is it a reasonable way to go about it?
• Is there another less intrusive way to achieve the same result?
Third, do a balancing test. Consider the impact of your processing and whether this overrides the interest you have identified. You might find it helpful to think about the following:
• What is the nature of your relationship with the individual?
• Is any of the data particularly sensitive or private?
• Would people expect you to use their data in this way?
• Are you happy to explain it to them?
• Are some people likely to object or find it intrusive?
• What is the possible impact on the individual?
• How big an impact might it have on them?
• Are you processing children’s data?
• Are any of the individuals vulnerable in any other way?
• Can you adopt any safeguards to minimise the impact?
• Can you offer an opt-out?
You then need to make a decision about whether you still think legitimate interests is an appropriate basis. There’s no foolproof formula for the outcome of the balancing test – but you must be confident that your legitimate interests are not overridden by the risks you have identified.
Keep a record of your LIA and the outcome. There is no standard format for this, but it’s important to record your thinking to help show you have proper decision-making processes in place and to justify the outcome.
Keep your LIA under review and refresh it if there is a significant change in the purpose, nature or context of the processing.
If you are not sure about the outcome of the balancing test, it may be safer to look for another lawful basis. Legitimate interests will not often be the most appropriate basis for processing which is unexpected or high risk.
If your LIA identifies significant risks, consider whether you need to do a DPIA to assess the risk and potential mitigation in more detail. See our guidance on DPIAs for more on this.
We are satisfied we have complied in full with the Legitimate Interest Tests as identified in the ICO Guide to the General Data Protection Regulation
These are the Twelve Steps we have undertaken to ensure we are adequately prepared for the implementation of GDPR in May 2018. In this we have followed the guidelines in the "Preparing for the General Data Protection Regulation (GDPR) "12 steps to take now published by the Information Commissioners Office (ICO)." The PDF download is available from the ICO Web site
In addition we place reliance on "legitimate interest" as the sixth test of compliance. Below we identify the guidelines we have used for legitimate interest and the tests of legitimate interest we have applied.
1 Awareness
You should make sure that decision makers and key people in your organisation are aware that the law is changing to the GDPR. They need to appreciate the impact this is likely to have.
DONE
2 Information we hold
You should document what personal data you hold, where it came from and who you share it with. You may need to organise an information audit. DONE
3 Communicating privacy information
You should review your current privacy notices and put a plan in place for making any necessary changes in time for GDPR implementation.
DONE
4 Individuals’ rights
You should check your procedures to ensure they cover all the rights individuals have, including how you would delete personal data or provide data electronically and in a commonly used format.
The GDPR includes the following rights for individuals:
the right to be informed;
the right of access;
the right to rectification;
the right to erasure;
the right to restrict processing;
the right to data portability;
the right to object; and
the right not to be subject to automated decision-making including profiling.
DONE
5 Subject access requests
You should update your procedures and plan how you will handle requests within the new timescales and provide any additional information.
DONE
6 Lawful basis for processing personal data
You should identify the lawful basis for your processing activity in the GDPR, document it and update your privacy notice to explain it.
DONE
7 Consent
You should review how you seek, record and manage consent and whether you need to make any changes. Refresh existing consents now if they don’t meet the GDPR standard.
DONE
8 Children
You should start thinking now about whether you need to put systems in place to verify individuals’ ages and to obtain parental or guardian consent for any data processing activity.
DONE
9 Data breaches
You should make sure you have the right procedures in place to detect, report and investigate a personal data breach.
DONE
10 Data Protection by Design and Data Protection Impact Assessments
You should familiarise yourself now with the ICO’s code of practice on Privacy Impact Assessments as well as the latest guidance from the Article 29 Working Party, and work out how and when to implement them in your organisation.
DONE
11 Data Protection Officers
You should designate someone to take responsibility for data protection compliance and assess where this role will sit within your organisation’s structure and governance arrangements. You should consider whether you are required to formally designate a Data Protection Officer.
DONE
12 International
If your organisation operates in more than one EU member state (ie you carry out cross-border processing), you should determine your lead data protection supervisory authority. Article 29 Working Party guidelines will help you do this.
DONE
Legitimate Interest
Legitimate interests is the most flexible lawful basis for processing, but you cannot assume it will always be the most appropriate. It is likely t o be most appropriate where you use people’s data in ways they would reasonably expect and which have a minimal privacy impact, or where there is a compelling justification for the processing. If you choose to rely on legitimate interests, you are taking on extra responsibility for considering and protecting people’s rights and interests.
Tests of Legitimate Interest
There are three elements to the legitimate interests basis. It helps to think of this as a three-part test. You need to:
◦ identify a legitimate interest;
◦ show that the processing is necessary to achieve it; and
◦ balance it against the individual’s interests, rights and freedoms.
The legitimate interests can be your own interests or the interests of third parties. They can include commercial interests, individual interests or broader societal benefits. The processing must be necessary. If you can reasonably achieve the same result in another less intrusive way, legitimate interests will not apply.
You must balance your interests against the individual’s. If they would not reasonably expect the processing, or if it would cause unjustified harm, their interests are likely to override your legitimate interests. Keep a record of your legitimate interests assessment (LIA) to help you demonstrate compliance if required. You must include details of your legitimate interests in your privacy information.
Legitimate Impact Assessment Test Part I
We have checked that legitimate interests is the most appropriate basis.
We understand our responsibility to protect the individual’s interests.
We have conducted a legitimate interests assessment (LIA) and kept a record of it, to ensure that we can justify our decision.
We have identified the relevant legitimate interests.
We have checked that the processing is necessary and there is no less intrusive way to achieve the same result.
We have done a balancing test, and are confident that the individual’s interests do not override those legitimate interests.
We only use individuals’ data in ways they would reasonably expect, unless we have a very good reason.
We are not using people’s data in ways they would find intrusive or which could cause them harm, unless we have a very good reason.
If we process children’s data, we take extra care to make sure we protect their interests.
We have considered safeguards to reduce the impact where possible.
We have considered whether we can offer an opt out.
If our LIA identifies a significant privacy impact, we have considered whether we also need to conduct a DPIA.
We keep our LIA under review, and repeat it if circumstances change.We include information about our legitimate interests in our privacy information.
Legitimate Impact Assessment Test Part II
1. Purpose test: are you pursuing a legitimate interest?
2. Necessity test: is the processing necessary for that purpose?
3. Balancing test: do the individual’s interests override the legitimate interest?
How can we apply legitimate interests in practice?
If you want to rely on legitimate interests, you can use the three-part test to assess whether it applies. We refer to this as a legitimate interests assessment (LIA) and you should do it before you start the processing.
An LIA is a type of light-touch risk assessment based on the specific context and circumstances. It will help you ensure that your processing is lawful. Recording your LIA will also help you demonstrate compliance in line with your accountability obligations under Articles 5(2) and 24. In some cases an LIA will be quite short, but in others there will be more to consider.
First, identify the legitimate interest(s). Consider:
• Why do you want to process the data – what are you trying to achieve?
• Who benefits from the processing? In what way?
• Are there any wider public benefits to the processing?
• How important are those benefits?
• What would the impact be if you couldn’t go ahead?
• Would your use of the data be unethical or unlawful in any way?
Second, apply the necessity test. Consider:
• Does this processing actually help to further that interest?
• Is it a reasonable way to go about it?
• Is there another less intrusive way to achieve the same result?
Third, do a balancing test. Consider the impact of your processing and whether this overrides the interest you have identified. You might find it helpful to think about the following:
• What is the nature of your relationship with the individual?
• Is any of the data particularly sensitive or private?
• Would people expect you to use their data in this way?
• Are you happy to explain it to them?
• Are some people likely to object or find it intrusive?
• What is the possible impact on the individual?
• How big an impact might it have on them?
• Are you processing children’s data?
• Are any of the individuals vulnerable in any other way?
• Can you adopt any safeguards to minimise the impact?
• Can you offer an opt-out?
You then need to make a decision about whether you still think legitimate interests is an appropriate basis. There’s no foolproof formula for the outcome of the balancing test – but you must be confident that your legitimate interests are not overridden by the risks you have identified.
Keep a record of your LIA and the outcome. There is no standard format for this, but it’s important to record your thinking to help show you have proper decision-making processes in place and to justify the outcome.
Keep your LIA under review and refresh it if there is a significant change in the purpose, nature or context of the processing.
If you are not sure about the outcome of the balancing test, it may be safer to look for another lawful basis. Legitimate interests will not often be the most appropriate basis for processing which is unexpected or high risk.
If your LIA identifies significant risks, consider whether you need to do a DPIA to assess the risk and potential mitigation in more detail. See our guidance on DPIAs for more on this.
We are satisfied we have complied in full with the Legitimate Interest Tests as identified in the ICO Guide to the General Data Protection Regulation