Change is on the horizon with the approach of the GDPR (General Data Protection Regulation), the EU’s sweeping new suite of data privacy regulations. As it applies to data collection that impacts any EU citizen, whether you’re based in an EU country or not, the reach of the GDPR does affect you. These new regulations take effect on 25 May 2018, meaning we have less than a year remaining to prepare for GDPR compliance.
Websites work every day collecting information about their users that falls under the scope of the GDPR. To that end, I’ll be keeping this article up to date as I can as a resource for GDPR compliance where websites and data is concerned.
Before I go any further this article is hugely adapted and based on the brilliant post by Quay Morgan over at Ninja Forms, I was half way through writing my own post when I came across his and instead of reinventing the wheel I thought i’d use his article as a base. I think we’ll all benefit from the logical and clear way his post was laid out.
I’ll cover these three major topics:
- What is the GDPR?
- What is the scope and impact of the GDPR?
- How can I be compliant?
Before We Get Started…
First, an obligatory disclaimer: I’m not a lawyer and what follows isn’t legal advice. We all have a vested interest in success under the GDPR, but if you need concrete legal counsel, talk to a lawyer.
Now that we have that out of the way, a bit of perspective: new regulation can be scary. There’s already a fair bit of anxiety out there about the GDPR, and the usual mix of misinformation and misunderstanding that accompanies new regulation on this scale.
We can speak with a high degree of certainty where data collection through your forms is concerned. The GDPR isn’t looking that scary. The EU’s intention largely looks to be a paradigm shift in the way the world thinks about and treats privacy and data collection. Enforceability is probably going to look very similar to VAT. Corporations and government agencies will likely be expected to comply immediately, and that will create a ripple effect that sets a new standard for how we handle data worldwide. It’s extremely unlikely that the EU authorities are going to start dropping noncompliance fines on small businesses in Hampshire fresh out of the gates next May.
In that light, it’s a cause that we can get behind 100%. Safeguarding your personal data, and helping you to safeguard your users’, is extremely important.. Compliance shouldn’t be difficult. Let’s begin exploring the GDPR and how to make this transition as painless as possible in the months ahead!
What is the GDPR?
The General Data Protection Regulation (GDPR) is the replacement for the Data Protection Directive 95/46/EC. Originally enacted in 1995 while the internet was still young, they’re definitely due the update. The change is much more than a simple update/upgrade of existing policy, however. At its core, the GDPR is a move towards enshrining control of your personal data as a fundamental human right.
The GDPR gives EU citizens control of their digital data by empowering them with the right to know when personal data is being collected, what data is being collected, access to that data, and to purge it on request. And that’s just a general overview; we’ll get into the nitty gritty of the details below.
In short, the GDPR is a data privacy regulation that modernises and normalises data privacy laws across Europe and applies to any organisation collecting data on EU citizens.
Impact and Scope of the GDPR
The GDPR makes several key changes to privacy law and introduces basic data subject rights for all EU citizens. We’ll look at each in turn below.
Increased Territorial Scope
The reach and applicability of the GDPR is not limited to the EU, but instead impacts any website/organization that handles the personal data of any EU citizen. This means that essentially any website must comply with the GDPR no matter where in the world the servers or administrators are physically located. If you accept traffic from the EU and collect information from EU citizens, GDPR compliance matters.
In technical terms, the GDPR applies to any processing of personal data by both controllers and processors of that data. Article 4 defines controllers as anyone that is involved in determining how personal data is handled regardless of whether they directly collect that data or not. Processors are defined as anyone who actually processes personal data on behalf of the controller. This is a key point to note as it broadens the scope of the GDPR to anyone involved in not just the collection but the handling of personal data as well, including public cloud services.
Explicit Consent Requirement for Data Collection
- Request the explicit consent of every user before any data collection takes place. Requests must be in clear, plain, easily understandable language free of legalese. It also must stand alone from other matters or requests and not be buried in other text.
- Have a means for users to request access and view the data you have collected on them.
- Provide users with a way to withdraw consent and purge personal data collected on them; i.e. the “Right to Be Forgotten”.
Penalties and Fines
Penalisation for noncompliance comes in the form of tiered fines that scale to the severity of the violation. Fines cap at 4% of annual turnover or €20 million, whichever is greater.
Data Subject Rights
In plain English, a data subject is any EU citizen from which you are collecting personal data. GDPR compliance requires data subjects be granted certain rights. What follows is not an exhaustive list, but those rights that are relevant to the collection, processing, and storage of personal data on your website.
Right to Access. Data subjects must be able to request and obtain confirmation that data is or is not being collected on them, and if so exactly what data is being collected, how, where, and for what purpose. That data must also be provided to them in an electronic format free of charge on request.
Right to Be Forgotten. Data subjects must be provided a quick and painless way to withdraw consent and have collected data purged.
Data Portability. Similar to the Right to Access, Data Portability requires that data subjects are able to request, obtain, and/or transfer possession of collected data at any time.
Breach Notification. If a breach/unauthorised access of personal data takes place that is likely to “result in a risk for the rights and freedoms of individuals”, notification must be made within 72 hours of becoming aware of the breach.
GDPR Compliance and Website Forms
Forms exist to collect data offered by your visitors, guests, and members. How can you maintain GDPR compliance while using Forms? Let’s dive into the details of what this new regulation means for you and your website specifically.
What Forms Do We Need to Worry About?
First, not all your forms are necessarily going to be impacted by the GDPR. Running an anonymous survey? Quiz? If you’re not collecting personally identifiable information on users, your form’s not impacted. However…
Are you asking for a name? Email? Address? Phone? The GDPR impacts that form. If you’re using any email marketing or CRM extensions in a form, it’s affected. Save Progress? It’s affected. Most likely any form that deals with commerce of any type through Stripe, Paypal, or Recurly is affected. If you’re collecting any personally identifiable information whatsoever, GDPR compliance becomes important. So, how to comply?
How Can We Comply?
It’s actually not that burdensome to make your forms compliant. There are several avenues to explore here, so let’s take a look at options.
To Store or Not to Store?
Drop dead easy way to comply: if you don’t need a record of the data collected via your forms, then simply don’t store the data. This eliminates any question of GDPR compliance.
Now this obviously isn’t going to work for most of us. Many of us use our forms expressly for the purpose of collecting data, and having a record of submissions is mission critical. Let’s look then at how we can collect data and still comply.
1. Request Consent
Explicit consent has to be obtained before data collection can take place. In other words, before the user submits the form. They must be made aware that this form is collecting personal data with the intent to store that data. You’re also responsible for letting the user know how that data will be stored and used. Don’t sweat, it’s easier than it sounds.
Informing the user that a form is going to be collecting personal data and requesting consent is as simple as two fields: Bit of text and a single checkbox field.
2. Make User Data Organized and Accessible
Forms generally can collect and store data in 2 ways: submissions and email. What we’re about to cover here is applicable to both forms of stored data.
- Be able to provide a user with all personal data you have on them on request
- Be able to purge all personal data you have on them on request
The responsibility of being able to associate submitted data with the submitter falls to you. There are probably a number of ways to pull this off. Our recommendation? The simplest means would likely be to always collect an email address when you collect personal data of any type.
3. Have an Open Channel for User Requests
GDPR compliance requires that you be reachable and responsive to user requests for data that you’ve collected on them either to view or delete. There are a number of ways to handle this also, but obviously we recommend a form!