Data protection: new challenges ahead

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The much awaited Data Protection Bill (the “Bill”) was on the Order Paper at the National Assembly for first reading yesterday.

We protect what is valuable. And the more something is valuable, the need for protection increases.

This is exactly the case for data, which is today regarded as the world’s most valuable resource. Data is to this century what oil was to the last. As per The Economist (06/05/17), the five most valuable listed firms in the world are the giants that deal in data, namely, Alphabet (Google’s parent company), Amazon, Apple, Facebook and Microsoft. Their profits are surging: they collectively made over $26 bn in net profit only for the first quarter of 2017.

In today’s world, whether we are jogging, watching TV, eating or stuck in traffic, virtually every activity creates a digital trace which is the raw material to data distilleries. The data subject¹ might not even be aware of same. Globalisation, coupled with the rapid technological developments which the world has witnessed over the last decades have brought new challenges to the protection of personal data. The scale of collection and sharing of personal data has increased exponentially. Both private companies and public authorities make use of personal data on an unprecedented scale in their day to day activities and natural persons increasingly make personal information available publicly and globally. Whilst technology has transformed both the economy and social life of people and should further facilitate the free flow of personal data whether onshore or offshore, the need to ensure a high level of protection of personal data is essential.

Article 22 of the Code Civil Mauricien provides that: “Chacun a droit au respect de sa vie privée”. The need for data protection laws is derived from this general principle that everyone has the right to the protection of his private life, of which personal data forms an integral part.

Data protection law concerns the protection of personal data of a living individual; personal data being data which relates to an individual, his or her private, professional or public life.

Our Data Protection Act (“DPA”) dates back to 2004, though the substantive provisions of the DPA came into operation in 2009. The DPA is inspired from the European Data Protection Directive (EC/95/46) (the “Directive”) of 24 October 1995 which is itself inspired from the OECD data protection guidelines. The DPA was enacted at a time when our ICT sector was in full expansion with the implementation of call centres and the processing of large volumes of data. It was extremely important to send the right signal and create appropriate confidence among investors to the effect that data they send to Mauritius for processing was protected and any breach of data protection laws would be met by sanctions.

There are eight data protection principles which data protection legislations worldwide, including the DPA have adopted. These principles provide that personal data needs to be processed fairly, lawfully, for a specific purpose and in accordance with the rights of data subjects. Furthermore, appropriate security measures should be taken for unauthorised processing of personal data and against accidental loss, destruction or damage. Another principal is that personal data can only be transferred to a third country which ensures an adequate level of protection for the rights of data subjects in relation to the processing of personal data.

In this new world economy where data is the new master, the European Union (“EU”) has come up with the General Data Protection Regulation (GDPR) [Regulation (EU) 2016/679]. The GDPR was published in the Official Journal of the EU on 04 May 2016, with effect as from 25 May 2018 when it will repeal and replace the existing Directive. The objective of the GDPR is to harmonise data privacy laws across the EU, to protect and empower all EU citizens’ and residents’ data privacy and reshape the way organisations approach data privacy.

The Bill, when passed, will repeal the DPA and replace it by a new legislation which will  align itself with the new international standards set by the GDPR.

However, irrespective of whether the DPA is amended or not, the GDPR, a legislation emanating from the European Parliament, is of relevance to Mauritius as it has extra-territorial applicability. This means that: (i) the GDPR will apply to every data controller²/processor, regardless of location; that processes EU citizens’ and residents’ personal data; (ii) the GDPR will apply if the data controller, processor or subject is based in the EU; and (iii) EU citizens’ personal data will not be transferable to a country that does not have similar regulations as the GDPR. By way of example, not only will the GDPR apply to a EU university collecting personal data of a Mauritian student, but it will also apply to the Mauritian university collecting personal data of a EU citizen or resident wanting to enrol for a course and unless Mauritius has data protection laws which are similar to the GDPR, the Mauritian university will be unable to collect data of the EU Citizen or resident.

Under the GDPR, data subjects will have strengthened rights to privacy which they can enforce directly against the data controller/data processor³. Organisations will need to adopt a consistent and coordinated approach to compliance across all EU operations

The key changes which the Bill is bringing to align our domestic law with the GDPR include:

  • The obligation to adopt the principle of accountability which requires the data controller to demonstrate active compliance with its legal responsibility;
  • The obligation to adopt the principle of “privacy by design” which involves ensuring that data protection principles are taken into account at the early stages of designing new technologies, products and systems;
  • The obligation to adopt the principle of “privacy by default” which involves ensuring that privacy protection is adopted as a default option;
  • The obligation to carry out privacy impact assessments by the controller prior to any potential high risk processing;
  • The obligation to appoint a Data Protection Officer in case of large scale data processing or if the organisation is processing data as a public entity;
  • The new right to data portability which involves the right of the data subject to receive personal data which they have previously provided in a “structured, commonly used and machine readable format” which they have the right to transmit to another controller;
  • The new right to be forgotten which entitles the data subject to force the data controller to erase his personal data, cease further dissemination of the data and potentially have third parties halt processing of the data.
  • The new requirement to notify the Data Protection Commission of Mauritius and the data subject if a data breach takes place;
  • A special category of personal data has been created to include  new fields such as biometric data and genetic data.
  • The new right of the data subject to obtain, free of charge, a copy of their personal data being processed by the data controller in an intelligible form, using clear and plain language;
  • Special rules relating to automated processing of personal data (profiling);
  • The new requirement to obtain parental consent for the use of data of a child under the age of 16; and

The penalties provided by the Bill remain the same as those under the DPA. The penalty, under the GDPR, in case of non-compliance, is a maximum fine of up to EUR 20 million or 4% of the global annual turnover of the organisation in the preceding year, whichever is the higher.

Data Controllers have less than six months to prepare themselves and bring their current data operations in line with the new requirements of the GDPR. Given the scale of such changes, and the huge financial consequences in case of non-compliance, data controllers need to start now.as the earlier the impact of the GDPR is identified and any action plan is implemented, the better it will be for them. Being compliant will help data controllers gain and strengthen customer trust, confidence and loyalty, resulting in greater productivity and efficiency.

 

  1."Data subject" means a living individual who is the subject of personal data.

2. "Data controller" means a person who, either alone or jointly with any other person, makes a decision with regard to the purposes for which and in the manner in which any personal data are, or are to be, processed.

3. "Data processor" means a person, other than an employee of the data controller, who processes the data on behalf of the data controller.

 
  
     
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