The General Data Protection Regulation and American Companies

The General Data Protection Regulation (GDPR) is a regulation adopted by the European Union (EU) to strengthen and unify data protection for all individuals within the EU. It came into effect on May 25, 2018 and replaces the 1995 EU Data Protection Directive. The GDPR strengthens EU data protection rules by giving individuals more control over their personal data and imposing strict rules on organizations that collect, process, or store personal data. The regulation applies to all organizations operating within the EU, as well as organizations outside of the EU that offer goods or services to individuals in the EU.

Do U.S. Companies fall under the GDPR

U.S. companies may fall under the GDPR if they offer goods or services to individuals in the EU, or if they monitor the behavior of individuals in the EU. In particular, the GDPR applies to U.S. companies if they have an establishment in the EU or if they target their goods or services to individuals in the EU. This could include, for example, companies that have an online presence, such as a website or mobile app, that is directed at individuals in the EU. Additionally, companies that collect and process personal data of individuals in the EU, such as through the use of cookies or other tracking technologies, may also be subject to the GDPR.

In general, companies that fall under the GDPR are required to appoint a Data Protection Officer (DPO) and comply with the GDPR’s principles of data protection such as data minimization, data accuracy, data integrity, data retention, and data security. They also have to follow the rights of individuals under GDPR like right to access, right to rectification, right to erasure, right to data portability, right to object and right to be informed, etc.

It’s important to note that failure to comply with the GDPR can result in significant fines and penalties. So, companies should understand their obligations and take the necessary steps to ensure compliance.

The EU works with the FTC to enforce against U.S. Companies

The EU enforces the GDPR by using a combination of administrative and judicial remedies.

Administrative remedies include fines and penalties, which can be imposed by supervisory authorities (SA) designated by each EU member state to enforce the GDPR. These fines can be significant, up to 4% of a company’s global annual revenue or 20 million euros (whichever is higher) for certain violations.

Judicial remedies include the ability for individuals to file lawsuits for damages if they believe their rights have been violated under the GDPR.

Additionally, the EU has the power to take action against non-compliant organizations based outside of the EU by working with other data protection authorities and organizations. For example, the EU can work with the U.S. Federal Trade Commission (FTC) to take action against U.S. companies that are not in compliance with the GDPR.

It’s also worth noting that there are mechanisms such as EU-US Privacy Shield framework that enables the EU to ensure that companies in the US provide an adequate level of data protection for personal data transferred from the EU to the US. The framework also provides a mechanism for EU individuals to raise any concerns they may have about their data protection rights.

In summary, EU can enforce GDPR against US companies by imposing fines, penalties and taking legal actions. They also can work with other data protection authorities and organizations such as FTC to ensure compliance of the regulation.

Consumers rights under the GDPR

The General Data Protection Regulation (GDPR) provides a number of rights for individuals in relation to their personal data. These rights include:

1. The right to be informed: Individuals have the right to be informed about how their personal data is collected, used, and shared by organizations.
   
2. The right of access: Individuals have the right to access their personal data held by organizations and to receive a copy of that data.
   
3. The right to rectification: Individuals have the right to have inaccurate personal data corrected or completed if it is incomplete.
   
4. The right to erasure: Individuals have the right to have their personal data erased in certain circumstances, also known as “the right to be forgotten”.
   
5. The right to restrict processing: Individuals have the right to restrict the processing of their personal data in certain circumstances.
   
6. The right to data portability: Individuals have the right to receive their personal data in a structured, commonly used, and machine-readable format, and to have it transferred to another controller.
   
7. The right to object: Individuals have the right to object to the processing of their personal data in certain circumstances.
   
8. Rights in relation to automated decision-making and profiling: Individuals have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects or similarly significantly affects them.

It’s important to note that these rights are not absolute and may be subject to certain limitations and exceptions, for example, when it comes to balancing the rights of the individual with the rights and freedoms of others or for the purpose of safeguarding national security.

Companies responsibilities under the GDPR

Companies have several responsibilities under the General Data Protection Regulation (GDPR) when it comes to the handling and processing of personal data of individuals within the EU. These include:

1. Compliance with the principles of data protection: Companies must ensure that personal data is processed in accordance with the principles of data protection, including data minimization, data accuracy, data integrity, data retention, and data security.
   
2. Appointment of a Data Protection Officer (DPO): Companies that meet certain criteria, such as those that process large amounts of sensitive personal data, are required to appoint a DPO.
   
3. Notification of data breaches: Companies must notify the relevant supervisory authority (SA) and affected individuals without undue delay in the event of a personal data breach.
   
4. Conducting data protection impact assessments (DPIAs): Companies must conduct DPIAs when the processing of personal data is likely to result in a high risk to the rights and freedoms of individuals.
   
5. Obtaining consent: Companies must obtain valid consent for the processing of personal data in certain circumstances.
   
6. Maintaining records of processing activities: Companies must maintain records of their processing activities, including the purposes of the processing, the categories of personal data, and the recipients of the data.
   
7. Responding to individual rights requests: Companies must respond to requests from individuals to exercise their rights under the GDPR, such as requests for access, rectification, and erasure of personal data.
   
8. International data transfer: Companies must ensure that personal data is transferred outside of the EU in compliance with the GDPR’s requirements for international data transfer.
   
9. Data protection by design and by default: Companies must implement appropriate technical and organizational measures to ensure that personal data is processed in accordance with the GDPR, and that such processing is carried out in a way that ensures the protection of the rights of the data subjects.
   
10. Data protection officer (DPO) or representative: For certain types of companies or organizations, GDPR requires the appointment of a Data Protection Officer (DPO) or a representative based in the EU.
    
11. Data protection impact assessment (DPIA): In certain cases, companies will be required to conduct a Data Protection Impact Assessment (DPIA) to identify and mitigate risks associated with the processing of personal data.
    
12. Reporting of data breaches: Companies must report data breaches to the relevant supervisory authority (SA) and to the individuals affected, without undue delay.
    
13. Cooperation with supervisory authorities: Companies must cooperate with supervisory authorities, providing information and assistance as required, to ensure compliance with the GDPR.
    
14. Data protection certification and codes of conduct: GDPR allows for companies to undergo data protection certification and to adopt codes of conduct to demonstrate their compliance with the regulation.
    
15. International data transfer: GDPR requires companies to take measures to protect personal data when transferring it outside of the EU.

One other important aspect of GDPR compliance for companies is their responsibilities when it comes to third-party service providers and processors.

1. Third-party service providers: Companies must ensure that any third-party service providers or processors that process personal data on their behalf comply with GDPR. This includes contracts and agreements that set out the specific instructions for processing, as well as ongoing monitoring to ensure compliance.
   
2. Sub-processing: Companies must also obtain written consent from their data controller customers before engaging any sub-processor and must inform their customers of any intended changes concerning the addition or replacement of other processors.
   
3. Auditing: Regularly auditing third-party service providers and processors to ensure that they are GDPR compliant is a must for companies.

Additionally, GDPR requires companies to appoint a DPO (Data Protection Officer) if the company processes certain types and amounts of data. The DPO would help the company to ensure GDPR compliance, including compliance with their responsibilities when it comes to third-party service providers and processors.

In summary, companies have specific responsibilities when it comes to third-party service providers and processors under GDPR. This includes ensuring that they comply with GDPR, obtaining consent, informing customers, and regular auditing to ensure compliance. Appointing a DPO can also be helpful for companies to ensure compliance.