3.2: The Regulation

Overview of the GDPR's structure

The GDPR is structured in two major sections, Recitals and Articles, as follows:

RECITALS

• Recitals provide context for interpreting the articles along with guidance and direction on implementation of the GDPR.
• Recitals are similar to the "whereas" part of a contract.
• There are 173 numbered Recitals representing 31 of the GDPR's 88 pages.

ARTICLES

• Articles contain the specific requirements for compliance (the rules).
• There are 99 numbered Articles in the GDPR.

Definition: Recital

In law, a recital (from Latin: recitare, "to read out") consists of an account or repetition of the details of some act, proceeding or fact. Particularly, in law, that part of a legal document—such as a lease, which contains a statement of certain facts—contains the purpose for which the deed is made.

In European Union law, a recital is a text that sets out reasons for the provisions of an enactment, while avoiding normative language and political argumentation.

Source: Recital (law) - Wikipedia

The GDPR organizes the 99 Articles into eleven chapters, covering such things as the rights of data subjects, the responsibilities of data controllers and data processors, as well as penalties.

We will not be discussing all of the GDPR's 99 Articles in detail. We will concentrate on those Articles that are important to an organization's compliance efforts.

This section only provides an overview of the general organization of the Articles. The next section will provide extracts from the GDPR of the Articles that will be relevant for many compliance implementations.

Note

Not every Article will apply to every organization.

Chapter 1 General Provisions

Chapter 1 provides some high level statements such as people having fundamental rights concerning the protection of their personal data, the regulation's scope in regard to the processing of that personal data, the geographic reach or scope of the GDPR, and lastly a set of definitions of pertinent terms.

• Article 1 Subject-matter and objectives
• Article 2 Material Scope
• Article 3 Territorial Scope
• Article 4 Definitions

Chapter 2 Principles

Chapter 2 covers some key data protection principles such as: lawfulness of processing, collecting and processing data only for stated purposes, keeping the data accurate, and providing and withdrawing consent for processing data. These Articles contain some of the GDPR's most important rules about when it is permissible to process people's personal data.

• Article 5 Principles relating to processing of personal data
• Article 6 Lawfulness of processing
• Article 7 Conditions for consent
• Article 8 Conditions applicable to child's consent in relation to information society services
• Article 9 Processing of special categories of personal data
• Article 10 Processing of personal data relating to criminal convictions and offenses
• Article 11 Processing which does not require identification

Chapter 3 Rights of the data subject

Chapter 3 is a key chapter in that it defines the rights of data subjects regarding their personal data such as: whether their data is being processed and for what reasons, the ability to correct incorrect data, the ability to have their data be erased, the right to move their data to another controller, and the right to not have their data be used for direct marketing purposes and profiling.

Section 1 Transparency and modalities

• Article 12 Transparent information communication and modalities for the exercise of the rights of the data subject.

Section 2 Information and access to personal data

• Article 13 Information to be provided where personal data are collected from the data subject
• Article 14 Information to be provided where personal data have not been obtained from the data subject
• Article 15 Right of access by the data subject.

Section 3 Rectification and erasure

• Article 16 Right to rectification
• Article 17 Right to erasure (‘right to be forgotten’)
• Article 18 Right to restriction of processing
• Article 19 Notification obligation regarding rectification or erasure of personal data or restriction of processing
• Article 20 Right to data portability.

Section 4 Right to object and automated individual decision-making

• Article 21 Right to object
• Article 22 Automated individual decision-making, including profiling

Section 5 Restrictions

• Article 23 Restrictions

Chapter 4 Controller and processor

Chapter 4 defines the responsibilities of the controller and processor entities. It limits the use of personal data to only that required for each specific purpose. It requires keeping records of processing activities.

Additionally, Chapter 4 addresses data protection impact assessments (DPIAs), the security of processing data (the pseudonymisation and encryption of personal data), the hiring of a Data Protection Officer (DPO), and certifications of compliance.

Section 1 General obligations

• Article 24 Responsibility of the controller
• Article 25 Data protection by design and by default
• Article 26 Joint controllers
• Article 27 Representatives of controllers or processors not established in the Union
• Article 28 Processor
• Article 29 Processing under the authority of the controller or processor
• Article 30 Records of processing activities
• Article 31 Cooperation with the supervisory authority

Section 2 Security of personal data

• Article 32 Security of processing
• Article 33 Notification of a personal data breach to the supervisory authority
• Article 34 Communication of a personal data breach to the data subject

Section 3 Data protection impact assessment and prior consultation

• Article 35 Data protection impact assessment
• Article 36 Prior consultation

Section 4 Data protection officer

• Article 37 Designation of the data protection officer
• Article 38 Position of the data protection officer
• Article 39 Tasks of the data protection officer

Section 5 Codes of conduct and certification

• Article 40 Codes of conduct
• Article 41 Monitoring of approved codes of conduct
• Article 42 Certification
• Article 43 Certification bodies

Chapter 5 Transfers of personal data to third countries or international organisations

Chapter 5 establishes principles and rules for handling personal data being transferred to third countries or to an international organization.

• Article 44 General principle for transfers
• Article 45 Transfers on the basis of an adequacy decision
• Article 46 Transfers subject to appropriate safeguards
• Article 47 Binding corporate rules
• Article 48 Transfers or disclosures not authorised by Union law
• Article 49 Derogations for specific situations
• Article 50 International cooperation for the protection of personal data

Chapter 6 Independent supervisory authorities

Chapter 6 defines what the supervisory authority is and how it is established in a member state (country). It then describes the supervisory authority's responsibilities that include monitoring and enforcing compliance to the GDPR in the member state. The supervisory authority's powers are in three main areas:

1. Investigative: this powers enables gathering evidence.
2. Corrective: it can issue warnings and fines to controllers and processors.
3. Authorization and advisory: it can establish standards and ways to obtain certifications of compliance.

Section 1 Independent status

• Article 51 Supervisory authority
• Article 52 Independence
• Article 53 General conditions for the members of the supervisory authority
• Article 54 Rules on the establishment of the supervisory authority

Section 2 Competence, tasks and powers

• Article 55 Competence
• Article 56 Competence of the lead supervisory authority
• Article 57 Tasks
• Article 58 Powers
• Article 59 Activity reports

Note

You will often find the supervisory authority referred to by privacy professionals and consultants as the data protection authority.

Chapter 7 Cooperation and consistency

When it comes to GDPR enforcement, it might be helpful to think of it occurring through a hierarchy of authorities: the supervisory authority for each member state (country) described earlier, followed by the European Data Protection Board (EDPB) that is comprised of representatives from each member state's supervisory authority. The EDPB is described in this section. Since the EDPB has representation from all member states, it can strive to apply the GDPR consistently across all the member states. The highest authority in the hierarchy is the EU Commission.

Section 1 Cooperation

• Article 60 Cooperation between the lead supervisory authority and the other supervisory authorities concerned
• Article 61 Mutual assistance
• Article 62 Joint operations of supervisory authorities

Section 2 Consistency

• Article 63 Consistency mechanism
• Article 64 Opinion of the Board
• Article 65 Dispute resolution by the Board
• Article 66 Urgency procedure
• Article 67 Exchange of information

Section 3 European data protection board

• Article 68 European Data Protection Board
• Article 69 Independence
• Article 70 Tasks of the Board
• Article 71 Reports
• Article 72 Procedure
• Article 73 Chair
• Article 74 Tasks of the Chair
• Article 75 Secretariat
• Article 76 Confidentiality

Chapter 8 Remedies, liability and penalties

Chapter 8 defines the rights of data subjects to lodge a complaint with a supervisory authority if they think the processing of their personal data by a controller or processor has been counter to the GDPR and to seek judicial remedies (e.g., potential compensation, or punishments against violators). Article 83 usually gets the most press as it defines the fines and penalties that can be imposed for non-compliance.

• Article 77 Right to lodge a complaint with a supervisory authority
• Article 78 Right to an effective judicial remedy against a supervisory authority
• Article 79 Right to an effective judicial remedy against a controller or processor
• Article 80 Representation of data subjects
• Article 81 Suspension of proceedings
• Article 82 Right to compensation and liability
• Article 83 General conditions for imposing administrative fines
• Article 84 Penalties

Note

The details of Article 83 are covered in the next section of the textbook.

Chapter 9 Provisions relating to specific processing situations

We will not be addressing the special cases called out in Chapter 9.

• Article 85 Processing and freedom of expression and information
• Article 86 Processing and public access to official documents
• Article 87 Processing of the national identification number
• Article 88 Processing in the context of employment
• Article 89 Safeguards and derogations relating to processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes
• Article 90 Obligations of secrecy
• Article 91 Existing data protection rules of churches and religious associations

Chapter 10 Delegated acts and implementing acts

We will not be addressing the administrative items called out in Chapter 10.

• Article 92 Exercise of the delegation
• Article 93 Committee procedure

Chapter 11 Final provisions

Article 94 repeals GDPR's predecessor, the DPD, as of May 25, 2018, and Article 99 states that the GDPR goes into force as of May 25, 2018.

• Article 94 Repeal of Directive 95/46/EC
• Article 95 Relationship with Directive 2002/58/EC
• Article 96 Relationship with previously concluded Agreements
• Article 97 Commission reports
• Article 98 Review of other Union legal acts on data protection
• Article 99 Entry into force and application

What follows is the text of several of the GDPR's Articles that are especially relevant to implementing a compliance program consistent with the GDPR's legal requirements.

Note

This chapter should not be treated as legal advice. For that, consult a practicing attorney.

References

1. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), 2016 O.J. (L 119) 1.

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