After lengthy discussions, the EU Data Protection Regulation was adopted by the European Parliament on April 14, 2016 and
it entered into force on May 25, 2016 (GDPR). However, the benchmark date, the one that gives a headache to any industry and to any company processing personal data is May 25, 2018, less than 3 weeks from now, the date on which this regulation becomes applicable.
But what does personal data and personal data processing mean and why should it preoccupy us starting with May 25, 2018 more than today?
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.
Personal data 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
The field was previously regulated under the 1995 Data Protection Directive, implemented in the Romanian legislation by Law 677/2001. Different from the old European directive, the GDPR is much bulkier, with 99 articles as opposed to 34 articles in the old directive, in addition to the 173 recitals in the preamble and, given its legal nature – that of a European regulation – it no longer has to be implemented by national legislation like the old instrument – the Directive -, having a direct effect in the territory of each EU Member State.
GDPR’s goal was to modernize and harmonize data protection across the EU. However, it remains problematic to what extent this goal has been reached, given that there are almost 50 open points in which Member States are left to detail, supplement, if not amend (to a certain extent) the provisions of the GDPR. It is thus assumed that the application of this legal regime will continue to vary from one Member State to the other. In this respect, the draft law on implementing measures for the GDPR is currently in the Chamber of Deputies for approval by parliamentary committees. From the information published on the Chamber of Deputies’ webpage, it results that, until now, the debates within the committees have not yet been finalized. The date on which the constitutional term for the debate and final vote would be reached would be June 26, 2018. Although, according to the GDPR, Member States are required to notify the European Commission regarding the norms adopted for the implementation of Regulation 679/2016 until May 25, 2018, the draft law might not be approved and published until that date.
GDPR maintains the general principles set out in the 1995 directive, but also includes a multitude of substantial amendments which in turn lead to the need for a complex re-evaluation of all the activities involving the use of personal data. In the following paragraphs we do not want to review all these changes since, given the volume of this regulation, we would probably take up the entire current edition of the magazine, but we will try to mention those changes that we considered to have a major impact.
Thus, the most important of all is the substantial rise in the level of sanctions. Substantial though is a very mild word, given that where the fine under Law 677/2001 is up to RON 50,000, under GDPR, supervisory authorities can apply fines of up to 4% of the total worldwide turnover corresponding to the previous financial year (which in the case of companies operating on several markets becomes even more burdensome) or up to EUR 20 million, taking into account the highest value.
GDPR’s application has been extended beyond the EU, which is one of the fundamental legal changes. Thus, if the application of the old directive was linked, in general, to the operator’s jurisdiction (for nuances, see CJEU case law in Google Spain v. AEPD and Mario Costeja Gonzales – ECJ C-131/12), the new GDPR clearly specifies that it applies to all data processors and controllers that offer goods or services to individuals in one or more EU Member States, irrespective of the place of residence of the controller or processor, even if they are established outside the EU.
If, under the 1995 Directive, the responsibility for data processing was solely for data controllers, under the GDPR, depending on the way data is managed, respectively who is the one who really controls its manipulation, liability can also be borne by the person empowered to process data – the processor, the risk being thus divided.
Based on the GDPR, there is an obligation to appoint a Data Protection Officer (“DPO”). In particular, the DPO will have the role of informing and advising the employees of the controller or of the personal data processor for whom they work, of their obligations in this area and, at the same time, the DPO will also monitor compliance with GDPR provisions and national legislation in the field.
With regard to data security, under the 1995 Directive there was a need to implement technical and organizational measures to ensure an adequate level of security, while the GDPR now comes and establishes the obligation to demonstrate compliance with security requirements and thus makes reference to Internal codes of conduct and certification. And security requirements are expanding, to include data availability, as opposed to the present when there were talks only about the confidentiality of data.
The GDPR establishes the obligation to notify the supervisory authority, namely, in Romania, the authority with a long name – the National Authority for Personal Data Surveillance and Protection („ANSPDCP”) in the case of personal data breach, no later than 72 hours from the date the operator became aware of it. If the notification could not be made within 72 hours, it must be accompanied by reasoned explanations regarding the delay. Furthermore, the affected persons should be immediately informed if the incident can lead to significant risks for them.
Last but not least, the new rights granted to individuals under the GDPR, such as the right to data portability and the right to request restriction of processing can have a significant impact on an operational plan, operators’ systems having to be reconfigured to allow compliance with those rights.
In the past, the legislation on personal data protection was unpopular for many gambling operators and for their contractual partners and it was not necessarily explicitly or extensively considered. In the future, however, especially in the online domain, minimizing the relevance of compliance in this area may prove to be very expensive. The above only attempts to shed glimpses of a legislation that is a real turning point, yet sufficient to show that it is crucial for gambling operators to revise and adapt their systems urgently to the new legal regime.
Place your bets lawfully!