Demystifying the Rules Surrounding GDPR and Your Business

If you have received a deluge of emails regarding updated privacy policies from services you use, you are not alone. They relate to a new set of data privacy rules that went into effect across the European Union on May 25, known as the General Data Protection Regulation (GDPR). The new rules have sweeping implications for businesses around the world. In fact, Facebook and others have already been sued for non-compliance with the GDPR.

If you do business in the EU (including the UK, which has said it will honor the rules) in any way, it would be a good idea to check with counsel regarding whether your business must comply. Although the rules are designed to cover consumer privacy, the way they are written is very broad; B2B as well as B2C customers are affected.

Common facts that can subject you to the GDPR include having European sales or facilities, using cloud-based storage for your website or portal, performing services in the EU, serving customers located there, having employees there, having vendors there, and having European employees who work in the United States temporarily.

The fact that your company is US-based does not matter: the rules explicitly apply to any company handling the personal information of persons in the EU, regardless of the company’s location. In addition, if you serve customers who pass you EU data, they may ask you to certify your security practices or to sign a “Data Processing Agreement” that makes certain assurances about your practices.

In addition to their operational implications, the rules require notice of a breach of any EU personal data within 72 hours – a huge hurdle unless you have conducted some advance planning. Many companies are reviewing their privacy policies, work flows, employee policies, cyber preparedness planning, vendor agreements, and other matters in connection with the GDPR. Not all companies have to conduct a “scorched earth” approach to privacy, but nearly all companies would do well to consider their business and privacy practices and make adjustments where they can.

The rules as drafted leave a great deal of room for the regulators to maneuver; they are very ambiguous. The very clear part of the GDPR, however, is this: fines for non-compliance can be assessed up to the greater of €20 million or 4% of global revenue.

Taylor English’s Data Security & Privacy Team is assisting the firm’s clients with assessment of the client’s exposure to the rules, policy drafting and review, contractual terms relating to the new rules, and liaison with security and technical resources. Our team has extensive in-house compliance experience, internationally and domestically, as well as broad expertise in the legal aspects of information security planning and incident response.

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