What is the GDPR?

The GDPR is the new European legislation meant to replace the 1995 Data Protection Directive

This regulation, which can be read in full on the CNIL website, is the new Europe-wide law governing the use and handling of individuals’ personal data.

It has 3 objectives:

  • To standardize European data protection regulations.
  • To give citizens control over how their personal data is used.
  • To make sure that companies are aware of their responsibilities regarding personal data.

Who does the GDPR apply to?

If you collect or process the personal data of any European citizen, regardless of the country in which your company is based, the GDPR will affect your business.

The GDPR has also eliminated the distinctions between various types of businesses — including B2B, B2C, for-profit, and nonprofit — meaning the law applies equally to all organizations that process the personal data of European citizens.

When should you be ready for the GDPR?

All relevant actors must be in compliance with the GDPR by May 25th, 2018.

What penalties will be applied within the new regulations?

Companies that are not in compliance with the GDPR could be fined anywhere from 2-4% of their annual revenue, or up to 20 million dollars, whichever is the higher amount.

How is the GDPR different from the current regulations?

One of the main goals of the GDPR is to extend the rights of European residents in regards to the handling of their personal data. This can be summarized as follows:

  • More access and control over the storage and processing of personal data for consumers
  • A tighter definition of consent and personal data
  • More transparency into the use of their personal data once it has been collected

New rights for users

The GDPR has created new rights of access and data protection for “data subjects”:

  • Right to rectification: The data subject may request that their personal data be updated or corrected.
  • Right to be forgotten: The data subject may request that their personal data be permanently deleted.
  • Right to portability: The data subject may request that their personal data be sent to another organization or competitor.
  • Right to object: The data subject may object to specific types of processing or uses of their personal data.
  • Right of access: The data subject has the right to be informed of any and all of their personal data that has been collected, as well as its intended use.

A new definition for consent

One of the big changes in the GDPR is the new definition of consent, which should now be “given freely” and provided in the form of a “positive action” for each planned use case involving the subject’s personal data.

Opt-out practices (whereby subjects are automatically subscribed to a list, leaving it up to them to unsubscribe) and passive opt-in practices (pre-checked boxes in subscription forms) are now prohibited under the new regulation.

Opt-in is now the only way to get explicit consent, and therefore the only legal way to obtain and use your customers’ contact information.

This means that from now on you must:

  • Provide additional opt-in forms for each of the different ways you plan to use personal data from your customers (e.g. newsletter, automated emails, profiling, etc.),
  • Ask your users for permission each time you want to use their personal data in a new way.

It is important to note that this new definition of consent also applies to the personal data of European residents collected before May 28th, 2018.

If you have already received consent for the use of this data, you do not need to ask for it again. However, if your current lists do not comply with the GDPR, you must ask for explicit permission from your contacts with the use of an opt-in form.

More transparency, new requirements for risk control…

This page is mostly concerned with summarizing the implications of your email marketing and marketing automation practices, but the GDPR also includes numerous other requirements: record keeping, nominating a Data Protection Officer, implementing a management risk process, etc.

Depending on your business and the nature of the personal data you process, the implications of the GDPR can be extremely far-reaching.

To better understand the requirements and legal ramifications for your organization, we recommend you consult a legal advisor specializing in personal data regulations.