Overview

The General Data Protection Regulation (Regulation (EU) 2016/679), abbreviated GDPR, is a European Union regulation on information privacy in the European Union (EU) and the European Economic Area (EEA). The GDPR is an important component of EU privacy law and human rights law, in particular Article 8(1) of the Charter of Fundamental Rights of the European Union. It also governs the transfer of personal data outside the EU and EEA. The GDPR's goals are to enhance individuals' control and rights over their personal information and to simplify the regulations for international business.

It supersedes the Data Protection Directive 95/46/EC and, among other things, simplifies the terminology.

The European Parliament and Council of the European Union adopted the GDPR on 14 April 2016, to become effective on 25 May 2018. As an EU regulation (instead of a directive), the GDPR has direct legal effect and does not require transposition into national law. However, it also provides flexibility for individual member states to modify (derogate from) some of its provisions.

As an example of the Brussels effect, the regulation became a model for many other laws around the world, including in Brazil, Japan, Singapore, South Africa, South Korea, Sri Lanka, and Thailand. After leaving the European Union, the United Kingdom enacted its "UK GDPR", identical to the GDPR. The California Consumer Privacy Act (CCPA), adopted on 28 June 2018, has many similarities with the GDPR.

General provisions

The regulation applies if the data controller, or processor, or the data subject (person) is based in the EU. The regulation also applies to organisations based outside the EU if they collect or process personal data of individuals located inside the EU. The regulation does not apply to the processing of data by private persons provided that the purpose has no connection to a professional or commercial activity." (Recital 18).

According to the European Commission, "Personal data is information that relates to an identified or identifiable individual. If you cannot directly identify an individual from that information, then you need to consider whether the individual is still identifiable. You should take into account the information you are processing together with all the means reasonably likely to be used by either you or any other person to identify that individual." The precise definitions of terms such as "personal data", "processing", "data subject", "controller", and "processor" are stated in Article 4.

The regulation does not purport to apply to the processing of personal data for national security activities or law enforcement of the EU; however, industry groups concerned about facing a potential conflict of laws have questioned whether Article 48 could be invoked to seek to prevent a data controller subject to a third country's laws from complying with a legal order from that country's law enforcement, judicial, or national security authorities to disclose to such authorities the personal data of an EU person, regardless of whether the data resides in or out of the EU.

Article 48 states that any judgement of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may not be recognised or enforceable in any manner unless based on an international agreement, like a mutual legal assistance treaty in force between the requesting third (non-EU) country and the EU or a member state.

The data protection reform package also includes a separate Data Protection Directive for the police and criminal justice sector that provides rules on personal data exchanges at State level, Union level, and international levels.

Principles and lawful purposes

Article 5 sets out six principles relating to the lawfulness of processing personal data. The first of these specifies that data must be processed lawfully, fairly and in a transparent manner. Article 6 develops this principle by specifying that personal data may not be processed unless there is at least one legal basis for doing so. The other principles refer to "purpose limitation", "data minimisation", "accuracy", "storage limitation", and "integrity and confidentiality".

If informed consent is used as the lawful basis for processing, consent must have been explicit for data collected and each purpose data is used for. Consent must be a specific, freely given, plainly worded, and unambiguous affirmation given by the data subject; an online form which has consent options structured as an opt-out selected by default is a violation of the GDPR, as the consent is not unambiguously affirmed by the user.

In addition, multiple types of processing may not be "bundled" together into a single affirmation prompt, as this is not specific to each use of data, and the individual permissions are not freely given. (Recital 32).

Data subjects must be allowed to withdraw this consent at any time, and the process of doing so must not be harder than it was to opt in. A data controller may not refuse service to users who decline consent to processing that is not strictly necessary in order to use the service. Consent for children, defined in the regulation as being less than 16 years old (although with the option for member states to individually make it as low as 13 years old), must be given by the child's parent or custodian, and verifiable.

Transparency and modalities

Article 12 requires the data controller to provide information to the "data subject in a concise, transparent, intelligible and easily accessible form, using clear and plain language, in particular for any information addressed specifically to a child."

Information and access

The right of access (Article 15) is a data subject right. It gives people the right to access their personal data and information about how this personal data is being processed. A data controller must provide, upon request, an overview of the categories of data that are being processed as well as a copy of the actual data; furthermore, the data controller has to inform the data subject on details about the processing, such as the purposes of the processing, with whom the data is shared, and how it acquired the data.

A data subject must be able to transfer personal data from one electronic processing system to and into another, without being prevented from doing so by the data controller. Data that has been sufficiently anonymised is excluded, but data that has been only de-identified but remains possible to link to the individual in question, such as by providing the relevant identifier, is not.

In practice, however, providing such identifiers can be challenging, such as in the case of Apple's Siri, where voice and transcript data is stored with a personal identifier that the manufacturer restricts access to, or in online behavioural targeting, which relies heavily on device fingerprints that can be challenging to capture, send, and verify.

Both data being 'provided' by the data subject and data being 'observed', such as about behaviour, are included. In addition, the data must be provided by the controller in a structured and commonly used standard electronic format. The right to data portability is provided by Article 20.