GDPR Compliance Update: Which Government Authorities Have Issued Official GDPR Guidance?

by Proskauer - Privacy & Data Security

This post provides an update as to the current status of official GDPR-related guidance. With a little under a year remaining until the European Union’s General Data Protection Regulation (GDPR) becomes enforceable, companies are on the lookout for any interpretive guidance from EU or member state authorities that will help them focus their compliance efforts. The EU’s Article 29 Working Party (WP29) thus far has adopted guidelines relating to data portability, the identification of lead supervisory authorities, and the role of data protection officers, and has issued draft guidelines on data protection impact assessments (DPIAs, also known as “Privacy Impact Assessments”). Additionally, EU member states – led by Germany –are beginning to pass laws meant to complement the GDPR and legislate in areas the GDPR leaves to the member states.  These laws also provide some clues as to how the GDPR will take effect on a country-by-country basis.

Guidance from the Article 29 Working Party

As mentioned above, in December 2016 the WP29 published draft guidelines on three new topics the GDPR introduced into EU law: data portability, the “one stop shop” system designed to facilitate the identification of lead supervisory authorities, and the role of data protection officers. The WP29 ultimately adopted revised versions of these guidelines in April 2017. The revised guidelines addressed a few important issues the draft versions left unaddressed or unclear, and included the following points, among others:

  • A recommendation that a company’s data protection officer be located in Europe;
  • Additional emphasis on the WP29’s position that, for purposes of data portability, a user’s “personal data” includes information gathered based on the data subject’s activity, “such as raw data processed by a smart meter or other types of connected objects, activity logs, history of website usage or search activities;”
  • A characterization of a company’s “main establishment,” for “one stop shop” purposes, as not only “the place where decisions about the purposes and means of the processing of personal data are taken,” but as the “place [that] has the power to have such decisions implemented.”

The WP29 also published draft guidelines on DPIAs in April 2017. Article 35 of the GDPR requires controllers to carry out a DPIA “[w]here a type of processing in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons.” Accordingly, these draft guidelines focus largely on providing advice about types of processing that are “likely to result in a high risk to the rights and freedoms of natural persons,” and provide a list of factors a controller should consider in making the determination as to whether a DPIA is needed.   The list suggests that controllers consider, among other things, whether their processing entails “[e]valuation or scoring” (which would include, for example, a bank screening its customers against a credit reference database), the processing of sensitive data, or whether the data being processed will be transferred out of the EU to a country with less-stringent data protection laws (which would include, in the eyes of the EU authorities, the US).  The guidelines state “a[s] a rule of thumb” that a processing operation that implicates more than two of these factors will require a DPIA, while processing that implicates fewer than two of these factors will not, although the document also allows that in some cases, a processing operation that touches upon only one of these factors nevertheless may still pose enough of a risk to warrant a DPIA.  The guidelines also suggest that a DPIA of any processing activity be re-assessed every three years, and that controllers should consider making available parts (if not all) of the DPIA to the public.

The public comment period for these draft DPIA guidelines closed in May, so the WP29 should be adopting a finalized set of guidelines in the coming months. In the meantime, the WP29 has committed to providing additional GDPR guidance over the next year, although the prospective publication dates remain unclear at this point.

Guidance from the UK’s Information Commissioner’s Office (ICO)

Not content to wait for the WP29’s guidelines on consent, the UK’s ICO published its own draft guidance on the subject in March of 2017. The draft guidance helpfully spells out the differences between the current Directive’s conception of consent and the GDPR’s expectations related to the same.  Specifically, the ICO guidance stresses that under the GDPR, companies will need to revise their consent mechanisms in order to obtain “more granular” consent.  In other words, a company must provide data subjects with specific consent options for various types of processing.  Furthermore, because consent must be informed in order to be considered valid, the company must provide data subjects with notice as to the nature of the different types of processing, including the extent of the processing activities and the purposes of the processing.

The guidance also emphasizes the importance of adopting “simple easy-to-access ways for people to withdraw consent.” The guidelines advise that the withdrawal of consent should be “an easily accessible one-step process” that makes it just as easy for the data subject to withdraw consent as it was for the data subject to give consent.  One example of such an “easily accessible” process, at least for any customers that gave consent via an online form, would be to provide another online form for withdrawing consent that is available from a link at the bottom of every webpage.

Although the UK currently is in the process of negotiating its Brexit from the EU, the UK likely will retain many of the GDPR’s provisions. Therefore, despite the fact that the UK may no longer be an EU member state a few years from now, the ICO’s guidance still may be considered helpful.

New Data Protection Law in Germany

At the end of April 2017, the German Parliament passed a new Federal Data Protection Act (formally known as the Bundesdatenschutzgesetz, and typically abbreviated as the BDSG). Although the GDPR is directly applicable in the EU member states and does not require any implementing legislation in order to become law, the BDSG is meant to ensure that German law is in line with the GDPR’s requirements.  Additionally, the GDPR allows the member states to legislate in particular areas, which will lead to some legal variations in privacy law across the EU.  The BDSG therefore also implements some of those allowable variations into German law and helpfully illuminates the legal areas in which some of the EU member states will diverge from one another once the GDPR becomes enforceable.  For example, the BDSG leaves in place provisions from the previous BDSG (which had been in place in Germany for decades) regarding employee data protection, which is an area the GDPR allows the member states to regulate themselves.

It is worth emphasizing that the BDSG is a law, rather than a set of guidance from regulators, and therefore companies operating in Germany should consider consulting with local counsel in order to understand how the new law may impact their operations in the country.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Proskauer - Privacy & Data Security | Attorney Advertising

Written by:

Proskauer - Privacy & Data Security

Proskauer - Privacy & Data Security on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.