Issue link: https://maltatoday.uberflip.com/i/1055420
maltatoday | SUNDAY • 25 NOVEMBER 2018 GAMING G14 Europe's landmark data privacy law, GDPR, came into effect last May. What counts as personal data under the GDPR? The General Data Protection Regulation, better known as 'GDPR' has at its heart, the no- tion of 'Personal Data', defined in article 4 as any information which can lead to the identifi- cation of a natural person. Cy- phered Information which can still lead to the identification of a person falls within the scope of this article. Personal data can vary from the most indisputable forms of identification, such as; the name, surname, home address, date of birth, phone numbers, eye and hair colour, tax in- formation, religious beliefs, character traits, email address (containing the name and/or surname), identification card number extending to the Inter- net Protocol Address, location data setting on one's phone, as well as data held by medical ex- perts. It is imperative to note that one cannot assume that a sim- ple name and surname falls within the ambit of this article, considering that many people have the same name; however, if that name is combined with other information it narrows down the number of people, which could eventually lead to the identification of a particu- lar person, giving rise to rights and obligations. How tough are these new regulations in comparison to regulations we've seen in other countries in the past? The predecessor of the GDPR was the Data Protection Direc- tive enacted in 1995. The defi- nition of personal data has now been greatly extended to be in line with today's new techno- logical advancements, such as email addresses, fingerprints, retina scans, CCTVs and IP ad- dresses, by including any data which might make it possible to identify a particular person. A comparative analysis be- tween regulations of different countries and the GDPR, shows that the latter is much stricter. For instance, the California Consumer Privacy Act of 2018 (CCPA) is not intended to ap- ply to companies which have annual gross revenues less than $25million. CCPA is narrower than the GDPR regarding the covered entities. China's 'Personal Information Security Specification' is also more lenient than the GDPR. Under this specific legislation, implied consent from the client suffices. In contrast, under the GDPR, consent must be explic- it, affirmative, unambiguous, freely given and informed. Another difference is that the GDPR aims to protect data subjects from "control- lers" and "processors" while the CCPA aims to protect con- sumers from businesses which collect personal information or, transfer such information. Under the GDPR, consumers have a private cause of action. However, under the CCPA, private consumers should give the business an opportunity to cure any violations and inform the California Attorney Gen- eral of a complaint against the company before filing a case. The strictness of the GDPR is amply demonstrated in the amount of the fines which can be levied. In some cases, viola- tors of the GDPR may be fined up to €20 million or up to 4% of the annual worldwide turno- ver whichever is higher, whilst under the CCPA; fines range between $100-$750 per con- sumer per incident or per ac- tual damages. Article 82 of the GDPR awards compensation to those who fall victim of breaches, causing the controller or processor to be liable. The severity of the ad- ministrative fines as enshrined in Article 83 depends on dif- ferent elements such as nature, gravity, duration of breach, and intent. With regards to recruitment, how does the GDPR affect the process and the work of recruiters compared to previous protection of personal data regulations? Article 88 of the GDPR pro- vides Member States with more specific rules on the ''rights and freedoms with respect to the processing of employees' per- sonal data in the employment context''. During the recruit- ment process, the recruitment agency must inform the candi- date of the purposes of person- al data processing; the period during which it will be stored; and the recipients of data. The GDPR obliges recruitment agencies to provide a "paper trail" illustrating commence- ment process of on-boarding; what information was provid- ed; the manner how the data was processed, stored, amend- ed and/or erased. Therefore these agencies have to have everything organised in one systematic database. The applicant also benefits from the right to be informed how personal data will be used; the right of access; the right to rectification of data if inac- curate or incomplete; the right to be forgotten under certain circumstances; the right to block or suppress processing of personal data; and the right to data portability. It is quite evi- dent that the aim of the GDPR is to give the individuals total control over their own per- sonal data, to be able to decide whether to provide such data, how it is to be provided, when it should be provided and when to be erased. The GDPR left an impact on recruitment agencies as busi- ness processes became more time consuming notwithstand- ing compliance with the previ- ous Data Protection Act. The changes were required to pro- mote more transparency to the candidates about how they collected, stored and used such data. For instance, before the GDPR came into force, the re- cruiters used to obtain consent from applicants and then send CV's to different employers or other databases. With GDPR consent needs to be separate and written every time. Moreo- ver, under the new law, the re- cruiter has to provide the appli- cant with vacancy details prior to the receiving the CV's. How do you envisage that new laws catering for the right to be forgotten shall be interpreted in light of the enhanced use of Blockchain technology? "The GDPR has been de- scribed as in some respects incompatible with Blockchain technology" by Marcus O'Dair in his book 'Distributed Crea- tivity'. We somewhat agree that the 'right to be forgotten' and Blockchain are a paradox. Arti- cle 17 of the GDPR gave birth to the right to be forgotten. Once a piece of data is written on Blockchain it is impossible to obliterate it or customise it and if one were to do so, it would defeat the whole purpose of having a Blockchain platform. Personal information is sup- posedly encrypted before being placed on Blockchain, and once the key is destroyed, the data is made pretty much unreadable. Despite this, personal data ex- ists in another form. So can this be considered a loophole? The very nature of Blockchain lies in having a public ledger pro- viding transparency to all users. In fact, Blockchain has thrived because it is a chain which can- not be altered, therefore pro- viding security and reliability. Blockchain is subdivided in two forms: public and private. It is easier for a private block- chain to follow GDPR rules as the participation in the net- work is limited. The GDPR has introduced the concept of ''pseudonymisation'', which aims to eliminate the possibility of having data being identified with a specific person. Viable techniques of pseudonymisa- tion are data masking and cryp- tographic hash function. So far, the EU has supported the use of Blockchain, therefore it is highly unlikely to jeopardise its development. Another solution is to have an editable Blockchain system, where designated administra- tors can rewrite or amend data blocks upon request of any user. Blockchain is weighing on the right to be forgotten in a sense that Blockchain networks are dispersed everywhere and therefore it is virtually impossi- ble to spot the subject respon- sible for what is happening on the Blockchain and on the pro- cessing of personal data. It also denies privacy as Blockchain networks – whether private or public – are transparent to their users. Moreover, transac- tions are irreversible. Despoina Xynou and Dr Glorianne Sciberras from Gauci-Maistre Xynou (Legal | Assurance) speak to MaltaToday about the basics of the new EU-wide piece of legislation called GDPR which was introduced amidst growing concerns around the safety of personal data from identity theft, cyberattacks, hacking or unethical usage The right to be forgotten and the financial services sector The General Data Protection Regulation Despoina Xynou, Managing Partner Dr Glorianne Sciberras, Associate