Lexi Webster
The General Data Protection Regulation (GDPR) is a privacy law that came into effect on May 25, 2018, to protect the personal data of EU citizens and residents. The GDPR applies to organisations based in the EU, as well as those outside of it, under specific circumstances. This includes Australian businesses that have an establishment in the EU, offer goods and services to EU citizens, or monitor the behaviour of individuals in the EU. Therefore, it is important to understand how the GDPR impacts Australian entities and their compliance requirements under both the GDPR and Australian privacy laws.
| Characteristics | Values |
|---|---|
| Date of implementation | 25 May 2018 |
| Applicability | Applies to organisations that handle data of EU citizens and residents, regardless of whether they are EU-based or not |
| Territorial scope | Processing of personal data in the context of activities of a controller or processor in the EU, or processing of personal data of data subjects in the EU by a controller or processor not established in the EU |
| Applicability to Australian businesses | May need to comply if they have an establishment in the EU, offer goods and services in the EU, or monitor the behaviour of individuals in the EU |
| Applicability to non-EU citizens | Applies to non-EU citizens if they live in the EU |
| Applicability to EU citizens outside the EU | Does not apply to EU citizens and residents living or holidaying outside the EU |
| Penalties for non-compliance | Administrative fines of up to €20 million or up to 4% of the total worldwide annual turnover, whichever is higher |
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What You'll Learn
Australian businesses with customers in the EU
The General Data Protection Regulation (GDPR) is the primary data protection regulation in the EU, safeguarding the personal information of EU residents and citizens. It applies to all member states of the EU and countries in the EEA. Notably, the GDPR also has an extra-territorial effect, meaning it applies to organisations that handle EU citizens' data, regardless of whether they are based in the EU or not.
To ensure compliance with the GDPR, Australian businesses with customers in the EU should review their practices and seek legal advice as required. They should also ensure that their data collection practices meet the requirements of Articles 13 and 14 of the GDPR, as well as relevant domestic privacy laws. Consent for the use or disclosure of personal information should be specific and freely given, such as through a positive opt-in by the individual. Additionally, businesses should ensure that their Access and Correction procedures meet the requirements of an EU resident, including the right to be forgotten.
It is important to note that failure to comply with the GDPR can result in significant administrative fines of up to €20 million or, in the case of an undertaking, up to 4% of the total worldwide annual turnover of the preceding financial year, whichever is higher.
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Australian businesses offering goods or services to EU citizens
The European Union's General Data Protection Regulation (GDPR) applies to organizations that handle EU citizens' data, regardless of whether they are EU-based or not. This means that Australian businesses offering goods or services to EU citizens may need to comply with the GDPR.
The GDPR contains new data protection requirements that aim to give individuals more control over how their data is collected, used, and protected online. It applies to organizations that are based in the EU, even if the data is stored or used outside of the EU. Additionally, it applies to organizations that are not in the EU if they offer goods or services to people in the EU or monitor their online behavior.
Australian businesses that are covered by the Australian Privacy Act 1988 (APP entities) may need to comply with the GDPR if they have an establishment in the EU or offer goods and services to EU citizens. This includes businesses that have a physical office in the EU, as well as those that target EU customers through methods such as enabling them to order products in a European language or pay in euros.
To ensure compliance, Australian businesses offering goods or services to EU citizens should assess their information handling practices and governance structures and seek legal advice where necessary. They should also be aware of the differences between the GDPR and the Australian Privacy Act, such as the 'right to be forgotten', which does not currently exist in the Australian framework.
It is important to note that the GDPR does not take into account citizenship questions. Instead, it focuses on the location of the data subject, regardless of their citizenship status. Therefore, Australian businesses offering goods or services to EU citizens in Australia or other non-EU countries may still need to comply with the GDPR.
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Australian businesses monitoring the behaviour of EU citizens
The General Data Protection Regulation (GDPR) is the primary data protection regulation in the EU, governing how companies process the personal data of EU citizens and residents. It applies to all member states of the EU and EEA countries. Notably, the GDPR also has an ""extra-territorial effect", meaning it applies to organisations that handle EU citizen data, regardless of whether they are based in the EU or not.
Australian businesses operating under the Australian Privacy Act 1988 (APP entities) may need to comply with the GDPR if they meet certain conditions. Firstly, if they have an establishment in the EU, they must comply with the GDPR, regardless of whether they process personal data within the EU. Secondly, if they do not have a physical presence in the EU but offer goods or services to individuals in the EU, they must comply with the GDPR. This includes businesses that enable customers to order products in a European language or pay in euros, as well as those that use web tools to track cookies or IP addresses of EU visitors to their website.
The third condition under which Australian businesses must comply with the GDPR is if they monitor the behaviour of individuals in the EU. This includes collecting information about individuals and using it to predict their preferences, behaviour, and attitudes. For example, businesses that use cookies to build profiles of website visitors and deliver targeted content would fall under this category.
It is important to note that the GDPR does not consider citizenship but rather the location of the data subject. Therefore, if an Australian business knows that its customers will use its services while in the EU, it may be subject to the GDPR.
Australian businesses should assess their data handling practices and seek legal advice to ensure compliance with the GDPR before it comes into effect.
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Australian businesses with an establishment in the EU
The GDPR applies to organisations that are based in the EU, even if the data is being stored or used outside of the EU. This means that Australian businesses with an establishment in the EU will need to comply with the GDPR, regardless of whether they process personal data in the EU or not. The regulation also applies to organisations that are not in the EU if they offer goods or services to people in the EU or monitor their online behaviour.
It is important to note that the GDPR does not take into account citizenship questions. Instead, it focuses on the location of the data subject, regardless of their citizenship status. Therefore, Australian businesses with an establishment in the EU will need to ensure that they are compliant with the GDPR for all individuals within the EU, regardless of their citizenship.
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Australian businesses that are data processors or controllers
The GDPR applies to organisations that are based in the EU, even if the data is stored or used outside of the EU. It also applies to organisations outside of the EU if they offer goods or services to individuals in the EU or monitor the behaviour of individuals in the EU. This includes tracking cookies or IP addresses of EU citizens visiting a company's website. For example, a software company in Sydney, Australia, that has built a tourist app that monitors users' locations and suggests nearby points of interest in Rome, London, Paris, and Sydney, would be subject to the GDPR.
Australian businesses may need to comply with the GDPR if they have an establishment in the EU, offer goods or services in the EU, or monitor the behaviour of individuals in the EU. This includes businesses covered by the Australian Privacy Act 1988 (APP entities). It is important to note that the GDPR does not consider the citizenship of individuals but rather their location. Therefore, if an Australian business is handling the data of individuals in the EU, it may be subject to the GDPR.
To ensure compliance with the GDPR, Australian businesses that are data processors or controllers should understand the distinct roles and responsibilities of these two positions. A data controller decides what data to collect, why they need it, and how long to keep it. They have decision-making power and authority over data handling. On the other hand, a data processor handles data based on the controller's instructions and does not have this decision-making power. Australian businesses should also consider appointing a Data Protection Officer (DPO) or similar to oversee all data protection activities and ensure compliance. Additionally, they should implement data security measures, such as regular audits and assessments, to protect personal data from breaches.
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Frequently asked questions
The GDPR applies to EU citizens in Australia if their data is being processed by an organisation with an establishment in the EU.
The GDPR is the primary data protection regulation in the EU. It is designed to give individuals more control over how their data is collected, used, and protected online.
Yes, the GDPR applies to organisations outside the EU under specific circumstances. The law applies to organisations that handle the personal data of EU citizens and residents, regardless of whether the organisation is based in the EU or not.
Organisations that fail to comply with the GDPR may face administrative fines of up to €20 million or up to 4% of their total worldwide annual turnover, whichever is higher.
The GDPR requires organisations to implement a comprehensive program of privacy risk management. This includes having a designated Data Protection Officer, obtaining specific consent from individuals for processing their personal data, and providing individuals with the right to be forgotten.
