Pension Scheme Trustees and the GDPR

by DLA Piper
Contact

DLA Piper

With less than six months to go until the General Data Protection Regulation (GDPR) comes into force on 25 May 2018, trustees of occupational pension schemes need to ensure that they are on track with their preparations to become GDPR-compliant. In this Pensions Alert we provide a reminder of the key action points for trustees and the importance of ensuring that this issue is on trustees' agendas now.

The legislation

The GDPR will apply in the UK from 25 May 2018 without the need for implementing national legislation. Whilst many of the main concepts and principles of the GDPR are similar to those in the current data protection legislation, there are also some significant differences including: a wider definition of personal data; a higher standard for consent as a lawful basis for processing; more extensive requirements to provide information to data subjects about the processing of their data; more extensive provision about the content of contracts between controllers and processors; a new principle of accountability which requires the data controller to keep records and be able to demonstrate compliance with the principles relating to processing; duties to notify the relevant supervisory authority (in the UK, this is the Information Commissioner's Office) of certain data breaches; and the potential for significantly higher financial penalties to be imposed in relation to breaches. We provided an overview of some of the key differences in our previous Pensions Alert on the GDPR.

A Data Protection Bill (Bill) is currently progressing through Parliament which includes some provisions which supplement the GDPR. For example, the GDPR provides that special categories of personal data (referred to as sensitive personal data in the current legislation), such as information concerning health, can only be processed if one of a list of conditions is met. This list includes that the data subject has given explicit consent. Some of the other alternative conditions in the list allow national law to set out the detail of when special categories of personal data can be processed, and the Bill contains the relevant provisions of UK law. The Bill currently makes very limited provision specifically permitting the processing of special categories of personal data by occupational pension schemes on the basis of one of these alternative conditions. As the Bill is still progressing through Parliament, it could be subject to change before it becomes law.

Guidance from the Information Commissioner's Office (ICO)

The ICO has already published some guidance in relation to the GDPR and in our previous Pensions Alert we reported on the ICO's Overview of the GDPR. The ICO has recently replaced its overview document with its Guide to the GDPR which currently contains similar content to the overview but with some sections having been expanded. The Guide is not yet a finished product but rather is a framework in to which the ICO will build upcoming GDPR guidance.

In terms of guidance still to come:

  • The ICO is expected to finalise its guidance on contracts and liabilities between controllers and processors by the end of 2017
  • European-wide guidelines on consent (one of the lawful bases for processing) are expected in December, after which the ICO will finalise its UK-specific guidance on this issue
  • Guidance from the ICO on consent and other lawful bases of processing is expected early next year
  • In relation to certain issues where European-wide guidelines are already available, such as Data Protection Impact Assessments, the ICO is considering whether it can provide any further detail over and above those guidelines

Key action points

Whilst the terms of the Data Protection Bill are not yet finalised and further guidance is still awaited from the ICO, this does not mean that trustees should wait to take action in relation to the GDPR. Instead they should take action now but bear in mind that in some areas the law and guidance is still developing. Key action points for trustees to consider include the following.

  • Data mapping - review what data is held, where it came from, how it is managed, who it is shared with and how long it is held
  • Contact administrators, advisers and other third parties who process data on the trustees' behalf to ask them what data they hold and what steps they are taking to ensure compliance with the GDPR
  • Consider and record the lawful basis of all processing activity. Lawful bases for processing personal data under the GDPR include consent, compliance with legal obligations to which the data controller is subject and the legitimate interests of the data controller. Where the data that is held is a special category of personal data (such as information in relation to ill health), check that a relevant condition is met to permit that processing. As noted above, the GDPR brings with it a much higher standard for consent than is currently applied
  • Review policies on data retention and document conclusions on the appropriate period for retention of data, bearing in mind that the GDPR provides that personal data should be kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data are processed
  • Review and negotiate updates to contracts with third parties, such as administrators, to ensure that they contain the provisions which the GDPR requires to be in contracts between data controllers and processors. Trustees should also consider whether other provisions of the contracts need to be amended, for example, indemnities and liability caps in light of the penalties that can apply under the GDPR
  • Review and update the notices sent to data subjects to ensure that they contain the information required by the GDPR and meet the provisions on transparency including that the information is provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language. It must also be provided free of charge
  • Prepare relevant policies and documents to demonstrate compliance in accordance with the GDPR principle of accountability and the requirements on records of processing
  • Put in place a process and policy in relation to identifying, assessing and, where necessary, reporting breaches

Next steps

There is a lot for trustees to do and less than six months to complete these activities. If trustees have not yet started their preparations they should therefore do so without delay. Trustees who have already started their preparations should check that they are on track with their project plans. There may now only be one or two full trustee board meetings before 25 May 2018 and therefore trustees should consider whether to establish a GDPR sub-committee to deal with these issues in between trustee board meetings in order to ensure that work on GDPR compliance can be completed on time.

[View source.]

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.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper
Contact
more
less

DLA Piper 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):
hide

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.

Security

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 info@jdsupra.com. 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: info@jdsupra.com.

- 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.