What is GDPR?
The GDPR (General Data Protection Regulation) is a new EU Regulation which has replaced the 1995 EU Data Protection Directive (DPD) to significantly enhance the protection of the personal data of EU citizens and increase the obligations on organisations who collect or process personal data. It came into force on 25th May 2018. The regulation builds on many of the 1995 Directive’s requirements for data privacy and security, but includes several new provisions to bolster the rights of data subjects and add harsher penalties for violations.
A regulation such as the GDPR is a binding act, which must be followed in its entirety throughout the EU. The GDPR is an attempt to strengthen, harmonize, and modernize EU data protection law and enhance individual rights and freedoms, consistent with the European understanding of privacy as a fundamental human right. The GDPR regulates, among other things, how individuals and organizations may obtain, use, store, and eliminate personal data. It has a significant impact on businesses around the world.
LegalXGen is fully committed to following the guidelines cited by GDPR. We promise to safeguard your data.
[Contact privacy@legalxgen.com for any questions/comments]
The full text of the GDPR can be found at https://gdpr-info.eu/ .
Does the GDPR apply to me?
While the current EU legislation (the 1995 EU Data Protection Directive) governs entities within the EU, the territorial scope of the GDPR is far wider in that it will also apply to non-EU businesses who a) market their products to people in the EU or who b) monitor the behavior of people in the EU. In other words, even if you’re based outside of the EU but you control or process the data of EU citizens, the GDPR applies to you. GDPR – important definitions
| TERM | DEFINITION |
| Data Subject | A person who lives in the EU |
| Personal Data | Any information related to an identified/identifiable data subject (e.g., name, national ID number, address, IP address, health info) |
| Controller | A company/organisation that collects people’s personal data and makes decisions about what to do with it. So if you’re collecting personal data and are determining how it will be processed (for example using the LegalXGen services to market to prospects and customers), you’re the Controller of that data and must comply with applicable data privacy legislation accordingly. |
| Processor | A company/organisation that helps a controller by “processing” data based on its instructions, but doesn’t decide what to do with data. So for example, LegalXGen is the processor of the data you collect in your LegalXGen application. We don’t control how you collect or use the data; we merely process it on your behalf and on your instruction. |
| Processing | Any operation or set of operations which is performed on personal data or on sets of personal data, by automated means or otherwise, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. |
| Data Protection Officer (DPO) | A representative for a controller/processor who oversees GDPR compliance and is a data-privacy expert |
| Data Privacy Impact Assessment (DPIA) | A documented assessment of the usefulness, risks, and risk-mitigation options for a certain type of processing |
| Supervisory Authority | Formerly called “data protection authorities”; one or more governmental agencies in a member state who oversee that country’s data privacy enforcement (e.g., Ireland’s Office of the Data Protection Commissioner, Germany’s 18 national/regional authorities) |
| Third Countries | Countries outside the EU |
What is personal Data as per GDPR?
As per GDPR, personal data is any information relating to an identified or identifiable individual; meaning, information that could be used, on its own or in conjunction with other data, to identify an individual. Personal data will include not only data that is commonly considered to be personal in nature (e.g., social security numbers, names, physical addresses, email addresses), but also data such as IP addresses, behavioral data, location data, biometric data, financial information, and much more. It is also important to note that even personal data that has been “pseudonymized” can be considered personal data if the pseudonym can be linked to any particular individual.
What are the rights of Data Subject under GDPR?
At the heart of GDPR lies a set of rights a person can exercise against organizations processing their personal data. Specifically, individuals have the right to:
| Access | Under GDPR, the Data Subject can request access to his/her personal data and learn how an organization uses it. |
| Erasure | Data Subject has a right to withdraw consent to store and use personal data and have the information erased. |
| Data Portability | Data Subject has the right to transfer its data from one service provider to another, and current provider must comply with this request. |
| Rectification | Data Subject can also require any errors in personal data to be corrected, and an organization must reply to the request within one month. |
| To Be Informed | Under GDPR, companies must be transparent about how they gather personal information, and must do it before they collect the data. As part of this, Data Subject must freely give consent for their data to be gathered for a specific purpose. |
| Restrict Processing | This gives Data Subject the right to block and suppress processing of their personal data. Under suppressing, an organization can still store personal information but cannot use it in any way. |
| Stop Processing | Data Subject has the right to object to using and processing their personal data. This includes direct marketing, profiling, processing for scientific or historical research, inclusion in statistical research and much more.
Once a Data Subject objects, all his or her data processing must cease immediately. |
In the case of LegalXGen’s relationship with a Customer, who is Controller and who is Processor of the data?
Unless explicitly clarified in any engagement, LegalXGen is the Processor and the Customer is the Controller. Please refer to definitions in the beginning of this document.
Is it mandatory for LegalXGen to provide EU hosting to its European customers to comply with GDPR?
No, there is no obligation under the GDPR for data to be stored in the EU and the rules regarding transfer of personal data outside the EU will not change. This means that, as long as the personal data is “adequately protected”, data may be transferred abroad.
LegalXGen has amended its Terms of Service and provided a new Data Protection Agreement aligned with GDPR to provide adequate safeguards on data transfer of EU data subjects to non-EU regions.
What does LegalXGen do to ensure lawful data transfers from the EU?
The GDPR permits transfers of personal data outside of the EU subject to certain conditions. The EU model clauses (Standard Contractual Clauses or SCC) provide a valid mechanism to lawfully transfer personal data. LegalXGen offers a Data Processing Agreement that incorporates the model clauses to our EU/EEA customers.
Is it mandatory for LegalXGen’s Customers dealing with EU Data Subjects to sign Data Processing Agreement (DPA)?
Yes, it is mandatory. Much before the deadline of 25th May, LegalXGen has reached out to all its Customers dealing with EU Data Subjects to sign the DPA.
What software changes is LegalXGen planning to do in preparation of GDPR?
We have made the necessary changes to LegalXGen to ensure that we are compliant by May 25th, 2018, and to help our Customers meet obligations under the GDPR to the extent that LegalXGen is used to collect and store EU personal data. Some of the changes that have been executed:
Is LegalXGen able to comply with the right to erasure (right to be forgotten)?
Yes. When one of your contacts (i.e. data subjects) asks you to delete them from your records, you’ll have the ability to do so quickly and easily.
Is double opt-in mandatory?
For those unfamiliar with this term, “double opt-in” is a 2-step mechanism where a person must confirm their email address after initially signing up. The GDPR does not require double opt-in (though certain countries may make this mandatory).
Opt-in proof or proof of legitimate interest will be needed.
I have contacts in my database that I don’t have specific opt-in records for. Should I have deleted them before May 25th 2018?
If you’ve lost track of the opt-in status of your contacts or never confirmed opt-in, you can run an “opt-in confirmation” campaign to remove any unconfirmed contacts from future sends.
A opt-in confirmation is a one-time email campaign that requests any contacts who haven’t already used some form of opt-in to confirm that they would still like to receive emails from you. Only the contacts who confirm their subscription status are then kept on your list. Those who don’t confirm will then be opted out of your marketing emails. The result is a highly engaged list of contacts who have proven that they want to continue receiving marketing emails from your company.
A quick note to think about, though: just because you don’t have record of opt-in doesn’t mean you don’t have lawful basis to process a contact record. Lawful basis comes in multiple forms:
What contractual changes has LegalXGen made in its agreements with customers & vendors in preparation of GDPR?
We have reviewed all our legal agreements to ensure that we have made all the required changes in order to be compliant with GDPR. Here are some of the planned changes:
We have updated our third-party vendor contracts to meet the requirements of the GDPR in order to permit us to continue to lawfully transfer EU personal data to those third parties and permit those third parties to continue to lawfully receive and process that data.
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