If your US-based business handles data from European customers, you need to be aware of the General Data Protection Regulation (GDPR). This regulation extends beyond Europe and has practical implications for businesses worldwide. Here's a guide to help you understand two crucial aspects of GDPR compliance: privacy notices and the requirement for a data protection representative in the European Union (EU).
Privacy Notices
One of the fundamental principles of GDPR is transparency, which is where privacy notices come into play. These notices inform individuals about how their data is processed. Your privacy notice should include:
- Identity and Contact Details. Clearly state who you are and provide contact details, so individuals know who is responsible for processing their data.
- Purpose of Data Processing. Explain why you are collecting personal data and how it will be used. This helps individuals understand the reasons behind data collection.
- Legal Basis for Processing. Specify the legal grounds for processing data. This could be consent, performance of a contract, legal obligation, vital interests, public task, or legitimate interests.
- Rights of Data Subjects. Inform individuals about their rights under GDPR, including the right to access, correct, delete, and restrict processing of their data, data portability, and the right to object.
- Data Retention. Detail how long personal data will be kept and the criteria for determining this period. This shows that data is not kept indefinitely and only for as long as necessary.
- Data Sharing. Indicate whether personal data is shared with third parties. Provide information on who these parties are and why the data is shared.
- International Data Transfers. If data is transferred outside the European Economic Area, explain the safeguards in place to protect the data, such as standard contractual clauses or adequacy decisions.
- Security Measures. Describe how you protect personal data from breaches and unauthorized access. This could include encryption, access controls, and other security measures.
- Automated Decision-Making and Profiling. If applicable, provide information on any automated processes, including profiling, used in data processing. Explain the logic involved and the potential impact on individuals.
- How to Lodge a Complaint. Provide details on how individuals can complain to a supervisory authority if they believe their data protection rights have been violated.
Making Your Privacy Notice Effective
- Accessibility. Ensure that your privacy notice is easy to find and understand. It should be prominently displayed on your website, especially at points where personal data is collected, such as sign-up forms and checkout pages.
- Clarity and Simplicity. Use plain language to avoid legal jargon. Your goal is to make sure that individuals can easily understand their rights and how their data is being used.
- Regular Updates. Review and update your privacy notice regularly to ensure it reflects any changes in your data processing activities or legal requirements.
EU Representatives
If your US business processes personal data of European individuals but does not have a physical presence there, GDPR requires you to appoint a representative in Europe. This representative acts as a point of contact for data subjects and supervisory authorities. Here's what you need to know about appointing an EU representative:
- Who needs an EU Representative. Your business must appoint a representative if you offer goods or services to European residents or monitor their behavior, and you do not have a physical presence in the EU.
- Roles and Responsibilities. Your representative acts as the primary contact for European data subjects and regulatory authorities. Your representative facilitates GDPR compliance by keeping records of your data processing activities and managing communications with regulatory bodies. The representative helps ensure GDPR compliance but does not assume legal liability for your business.
- Who Can Be an EU Representative. An EU representative can be an individual or a company established in a European Union member state where your data subjects are located. This could include law firms, consultancies, or other entities with experience in GDPR compliance.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.