There’s no doubt GDPR is shaking up the business landscape. Companies that spent time handling personal data relatively laxly are now faced with strict and comprehensive laws governing digital marketing and data use in the EU. Nowhere is this more apparent than in business disclosure and data access laws.
GDPR and the Rights of the Data Subject
Central to the rule of law for GDPR is the “data subject,” the individual user, consumer, or citizen interacting with IT and data-gathering systems for personal or business purposes.
GDPR law defines the data subject as “a natural person about whom the controller holds personal data and who can be identified, directly or indirectly, by reference to that personal data” (Article 4).
What does this mean for businesses and consumers?
- Data Subjects Own Their Data: The rights defined in GDPR imply or outright state that data subjects are the owners of their data. That is, an organization is not permitted to collect, process, or sell data in ways contrary to the expressed desires of the data subject.
- Consent Is Always Required: Organizations may collect no data without the subject’s explicit consent. Furthermore, the mechanism used to gain approval (most often some form-fill) must clearly state the purpose of the collection and the processing intended for the gathered data.
- Use of PII Must Be as Transparent as Possible: By “clarity,” regulators mean “clear and unambiguous,” with no intentional obfuscation. Data subjects must be notified of the exact use of their private information, and organizations may not use that data outside of the conditions under which the data subject gave consent.
This subject is enshrined in GDPR due to the rights extended to them, rights that apply to the use of their data, and the way businesses and other entities interact with them to collect that data.
Rights of Access for GDPR Data Subjects
For the scope of this article, we will discuss the rights that data subjects have in accessing and controlling their personal information. These rights encompass different conditions under which a business may hold or use that subject’s personal data.
Some of the core rights of access for data subjects are:
- Right of Access (Article 15): The data subject has the right to obtain specific information about processing personal data. This information includes the purpose of the processing, what data is being stored and processed, to whom the data will be disclosed, and for how long the data will be stored and processed. Any tools or automation used to process the data.
- Right of Rectification (Article 16): If the data subject requests their data and finds that some of it are incorrect, the business must correct that information “without undue delay.”
- Right of Erasure (Article 17): Also known as the “right to be forgotten,” this article states that the data subject may request the erasure of personal data “without undue delay,” under specific conditions. These conditions include cases where the data is no longer needed under the original consent conditions, where the data subject withdraws consent, where the organization has unlawfully processed the data, or if there are governmental reasons to erase such data. Additionally, if the company makes this data private before an erasure request, it must also notify other organizations about the request to pursue erasure in those processes.
- Right of Restriction of Processing (Article 18): If any information is found to be inaccurate, if any processing procedures are found to be unlawful, or if lawful processing timeframes have ended, then the data subject may request that the business restrict the processing of that data.
- Notification Obligations (Article 19): Any request to correct or erase data, or any request to cease processing, must be communicated to recipients (i.e., other companies processing the data as vendors or partners of the company). Additionally, the business must disclose any third party with access to this data upon request from the data subject.
- Right to Data Portability (Article 20): Upon request for data access, the business must provide that information in a machine-readable and structured format such that it is easily digestible and usable by that subject.
- Right to Object (Article 21): The data subject may demand that organizations cease all processing and marketing processes related to personal information. The organization may not object to this objection unless there is a legitimate grounding (such as legal claims).
As is clear from these defined rights, there is a tricky relationship between data subjects and the organizations that want to use their data. Governing bodies want to allow businesses to operate in a way that aligns with modern, data-driven economies–only also aligned with some basic rights for individuals.
Required GDPR Disclosures for Data Subject Consent
The topic of disclosure has come up several times in this article, and for a good reason–in order for data subjects to properly exercise their rights, they need to have the right information to empower informed decision-making.
To address this knowledge gap, GDPR dictates that organizations provide data to users during the data collection. In this context, the “data collection process” is any instance where the organization requests, in any way, PII to support business or marketing operations.
These regulations generally fall into two different categories:
- Information Provided When Collecting Data (Article 13): When collecting data from the data subject, a business must provide (where applicable) the identity and contact information of the organization’s representative, the data collection purposes, where the data will be processed, who will interact with the data, and other requirements related third-party vendors. Additionally, the organization must disclose at the time of collection how long the data will be stored (or how that time period is determined), a description of the subject’s right to the request, a description of the subject’s right to lodge complaints and any automated profiling tools used in the processing of the data.
- Information Provided When Not Collecting Data (Article 14): This article is functionally identical to the previous one, with one major exception: this pertains to instances where an organization gains access to user data from another company and not the subject themselves. In these cases, the organization must have records as to the source of the data.
GDPR and Europrivacy in 2023 with Lazarus Alliance
As we move into the new year, we’re seeing a sea change in GDPR compliance. Europrivacy will set the standard for GDPR in the future, and with it, an entirely new approach to data management and privacy will become the norm for businesses worldwide.
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