GDPR One Year Later: Has Your Company Sorted Through The Confusion And Risks – What U.S. Companies Need To Remember

Jul
09

It’s been more than 1 year since Europe’s General Data Protection Regulations (GDPR) went into effect, and the data protection regulatory front still remains confusing and difficult to trudge through for many U.S. based companies. However, it is clear, there is no slowing down when it comes to increased data privacy regulation. Below is a refresher on the basics of GDPR, as last year we saw many U.S. based companies put aside the issue of whether they needed to focus dollars and time on complying with GDPR. As the regulatory front continues to grow and there is increasing pressure from consumers, customers and vendors to pay attention to data privacy laws (like GDPR), companies who avoided GDPR should review the jurisdictional requirements to confirm their compliance obligations.

WHY CARE – HOW GDPR APPLIES TO U.S. COMPANIES?

Why should a U.S. (or local Midwest based) company pay attention to a set of regulations providing rights (in general) to residents of European nations? The answer is simple; GDPR’s extra-territorial reach allows European nations who have adopted GDPR to latch onto U.S. based companies who have no physical presence in Europe. A U.S. based company with no operations (or other establishment) in Europe will be subject to GDPR jurisdiction if the company either (1) offers goods or services to residents of European nations, or (2) monitors the behavior (i.e. through its website) of residents of European nations.

PRACTICAL WAYS TO START YOUR COMPLIANCE PLAN.

Companies who desire to start formulating a plan with respect to data privacy compliance should start with data mapping. Understanding where and who data is collected from, what the company does with the data and where and who data is shared with will help a company determine what data privacy regimes govern its operations. From there, a company can begin to pull together its data privacy compliance program (whether basic or more sophisticated) to ensure compliance with all applicable data privacy laws.

IMPLEMENTING NECESSARY CHANGES.

Among other things, GDPR requires a company to include specific disclosures in its website’s privacy policy, to have in place consent rights and disclosures with respect to the use of cookies, and to formulate various technical and operational policies and procedures with respect to the treatment and use of data.

Penalties under GDPR for noncompliance can be hefty and upwards of $20 million Euros or 4% of a company’s worldwide annual turnover (whichever is greater). Companies may also be subject to criminal penalties, suits by supervisory authorities or private rights of action by individuals. And today, various European supervisory authorities are beginning to investigate compliance among dozens of U.S. based companies.

GDPR’S NOT FOR YOU – YOUR CUSTOMERS AND VENDORS MIGHT TELL YOU OTHERWISE.

Even if a company determines that GDPR’s jurisdictional reach does not apply to its operations, many U.S. based companies are seeing their customers and services providers require them to comply with the terms of GDPR (through flow-down liability). It is important for companies to understand what they are contractually signing up for and what impact agreeing to GDPR compliance will have.

What this means for most U.S. based companies, is that if GDPR is not yet on your radar (or you subtly ignored GDPR over the last few years), today is the day to review its application and take the necessary steps to gain compliance. With the regulatory focus on data privacy and security, even if GDPR does not apply to your company, almost all U.S. based companies will be impacted by various data privacy state laws working their way through local legislation. Starting with GDPR analysis is just the beginning!

LEARN MORE.

As you are evaluating GDPR’s ongoing impact, our experienced privacy team is ready to partner with you in formulating a practical, effective and tailored compliance approach that minimizes disruptions to your company’s business plans. Here is a link for more information on our team: Privacy Team

Click here to read Tackling The California Market From The Midwest? What A Business Needs To Know About The California Consumer Privacy Act (CCPA)

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