07 May 2018

Some GDPR myths make you see a problem where you should not, or what is even worse, they prevent you from detecting a problem when you should. To have a successful GDPR compliance project, you should avoid both above faults. To help you, we debunk the 5 GDPR myths that we faced the most often during our compliance projects.

1. The consent myth 1 – I don’t have it

Companies often think that if they do not have the consent of the data subjects they cannot process their personal data.

This can be true if consent is the only possible legal basis for processing. However, in many cases you can rely on one of the other grounds that the GDPR provides for the processing and then you do not need the consent of the data subject.

In many cases the law itself provides the legal basis for processing, for example you have to collect your employees’ identification data in order to do obligatory registration before the tax authority.

Sometimes the data processing is necessary for the performance of a contract that you concluded with your client, eg. if he ordered from your e-shop you need to collect his home address so that you can deliver him your product.

2. The consent myth 2 – I have it

The opposite approach is that many think that if they have the consent of the data subject, then problem solved, the data processing is lawful.

This attitude can be quite dangerous. While in many cases consent may be an appropriate legal basis, there are legal relationships and situations where it cannot be used.

As an example, in employment relationships generally consent cannot be considered as freely given. So even if your employee signs that he gives his consent to the processing, it will be invalid and your processing activity will be unlawful.

Employee consent can only be a lawful basis if the employee solely gets benefits: like if as a Christmas present you give your employee a book voucher and therefore you request his consent to disclose his name to the bookstore.

3. I do not possess the data -I am not responsible

Clients often do not consider themselves responsible for the processing since they have not collected the data and it is not stored in their systems.

Nevertheless, you must not forget that if you determined the purpose of the processing, even if you do not carry on the processing activity, you will be the controller and at the end of the day, responsible for the processing.

To tell you an example, if you entrust a marketing company to collect the e-mail addresses of persons who might be interested in your services and send them direct marketing messages, you will be a data controller regardless that it was not you who collected the data and sent the messages to the data subjects.

4. I do not process the data, I only store it

I often hear from clients the following sentence: we just store the data in our systems, but we don’t process it.

Bad news for them: storing the data is actually a processing activity. The whole point of the GDPR is to protect personal data against misuse and damages during processing. It is self-explanatory that data can be accessed or destructed unlawfully during the storage, so it makes sense to consider storage as processing and place responsibility for the person who does that.

For example, if you store a client e-mail address list on your server, even if you don’t ‘use’ it (eg. don’t send e-mails to them), this is a processing of the data and you will be liable for it.

5. I cannot transfer data outside the EU

Clients sometimes ask from me: I have read on the Internet that after the GDPR enters into force, we cannot send personal data outside the EU so what will we do with our contacts from the US / China etc.?

It is true that transferring personal data outside the European Union is only possible with certain safety guarantees which likely makes the data-flow harder, but it is not forbidden.

For example, if the US company to whom you send personal data is registered under the Privacy Shield, data transfer will be considered as safe. Or if this option is not available, you can enter into a data transfer model contract with the recipient which could be an appropriate safeguard of the data transfer.

To sum of the above, several ‘half-truths’ regarding the GDPR are spreading nowadays. You should be very careful with them since they either bind your hands unnecessarily, or what is even worse, they create a false sense of security which can cost you an arm and a leg.