The GDPR – One Year Later
A couple of weeks ago, one famous lawyer blogged about an issue frequently discussed these days: the GDPR, one year later.
“The sky has not fallen. The Internet has not stopped working. The multi-million-euro fines have not happened (yet). It was always going to be this way. A year has gone by since the General Data Protection Regulation (Regulation (EU) 2016/679) (‘GDPR’) became effective and the digital economy is still going and growing. The effect of the GDPR has been noticeable, but in a subtle sort of way. However, it would be hugely mistaken to think that the GDPR was just a fad or a failed attempt at helping privacy and data protection survive the 21st century. The true effect of the GDPR has yet to be felt as the work to overcome its regulatory challenges has barely begun.”
It’s true that since that publication, the CNIL issued a €50 million fine against Google, mainly for lacking a clear and transparent privacy notice. But even that amount is purely negligible compared to the fact that just three months before that, Google had been hit with a new antitrust fine from the European Union, totaling €1.5 billion.
So, would we say that despite the sleepless nights making sure our companies were ready to comply with privacy, privacy pros are a bit disappointed by the journey? Or what should be our reaction, as privacy pros, when people around us ask, “Is your GDPR project over now?”
Well, guess what? Just like we said last year, it’s a journey and we are just at the start of this voyage. But in a world where cloud has become the dominant way to access IT services and products, it might be useful to highlight a project to which the GDPR gave birth, the EU Cloud Code of Conduct.
Of course, cloud existed prior to the GDPR and many regulators around the world had given guidance well before the GDPR on how to tackle the sensitivity and the risks arising from outsourcing IT services in the cloud. But before the GDPR, most cloud services providers (CSPs) were inclined to attempt to force their customers (the data controllers) to “represent and warrant” that they would act in compliance with all local data laws, and that they had all necessary consents from data subjects to pass data to the CSP processors pursuant to the services. This scenario, although not sensible under EU data protection law, was often successful, as the burden of non-compliance used to lie solely with the customer as controller.
The GDPR changed that in Recital 81, making processors responsible for the role they also play in protecting personal data. Processors are no longer outside the ambit of the law since “the controller should use only processors providing sufficient guarantees, in particular in terms of expert knowledge, reliability and resources, to implement technical and organizational measures which will meet the requirements of this Regulation, including for the security of processing.
The adherence of the processor to an approved code of conduct or an approved certification mechanism may be used as an element to demonstrate compliance with the obligations of the controller.”
With the GDPR, processors must implement appropriate technical and organizational security measures to protect personal data against accidental or unlawful destruction or loss, alteration, unauthorized disclosure, or access.
And adherence to an approved code of conduct may provide evidence that the processor has met these obligations, which brings us back to the Cloud Code of Conduct. One year after the GDPR, the EU Cloud Code of Conduct General Assembly reached a major milestone in releasing the latest Code version that has been submitted to the supervisory authorities.
The Code describes a set of requirements that enable CSPs to demonstrate their capability to comply with GDPR and international standards such as ISO 27001 and 27018. It also proves that the GDPR has marked a strong shift in the contractual environment.
In this new contractual arena, a couple of things are worth emphasizing:
- The intention of the EU Cloud Code of Conduct is to make it easier for cloud customers (particularly small and medium enterprises and public entities) to determine whether certain cloud services are appropriate for their designated purpose. It covers the full spectrum of cloud services (SaaS, PaaS, and IaaS), and has an independent governance structure to deal with compliance as well as an independent monitoring body, which is a requirement of GDPR.
- Compliance to the code does not in any way replace the binding agreement to be executed between CSPs and customers, nor does it replace the right for customer to request audits. It introduces customer-facing versions of policies and procedures that allow customers to know how the CSP works to comply with GDPR duties and obligations, including policies and processes around data retention, audit, sub-processing, and security.
The Code proposes interesting tools to enable CSPs to comply with the requirements of the GDPR. For instance, on audit rights, it states that:
“…the CSP may e.g. choose to implement a staggered approach or self-service mechanism or a combination thereof to provide evidence of compliance, in order to ensure that the Customer Audits are scalable towards all of its Customers whilst not jeopardizing Customer Personal Data processing with regards to security, reliability, trustworthiness, and availability.”
Another issue that often arises when negotiating cloud agreements: engaging a sub-processor is permissible under the requirements of the Code, but it requires—similar to the GDPR—a prior specific or general written authorization of the customer. A general authorization in the cloud services agreement is possible subject to a prior notice to the customer. More specifically, the CSP needs to put in place a mechanism whereby the customer is notified of any changes concerning an addition or a replacement of a sub-processor before that sub-processor starts to process personal customer data.
The issues highlighted above demonstrate the shift in the contractual environment of cloud services.
Where major multinational CSPs used to have a minimum set of contractual obligations coupled with minimum legal warranties, it is interesting to note how the GDPR has been able to drastically change the situation. Nowadays, the most important cloud players are happy to demonstrate their ability to contractually engage themselves. The more influential you are as a cloud player, the more you have the ability to comply with the stringent requirements of the GDPR.
 Eduardo Ustaran – The Work Ahead. https://www.linkedin.com/pulse/gdpr-work-ahead-eduardo-ustaran/
 Article 40 of the GDPR
 Article 5.6 of the Code