The Attic recently caught up with Catie Sheret, Senior Vice President, Associate General Counsel and Chief Privacy Officer at Pearson to discuss the new GDPR regulation.
1. What is GDPR?
GDPR stands for the General Data Protection Regulation. It’s a new European regulation adopted two years ago that will take effect on May 25, 2018. It replaces the current directive and is designed to harmonise data protection rules with minimal deviations in the way they’re applied in each country. Compared to the current legislation it has increased extra-territorial effects, meaning entities that are selling/supplying services to European Union (EU) data subjects are subject to these rules, even if they are not paid-for products or services, and even if the controller is neither in the EU nor process the data in the EU.
Overall, GDPR doesn’t introduce a massive amount of change from the current legislation, but it is a huge talking point due to the following:
- Sanctions: Failure to comply can result in potentially huge fines – up to €20M or 4% of a company’s worldwide turnover.
- Accountability: Responsibility is transferred from the data subjects trying to enforce their rights to the company having to demonstrate that it complies with the legislation.
- Breach notification requirement: This doesn’t currently exist in many EU countries. You need to be ready to deal with data security breaches very quickly. With recent high-profile breaches and the reputational backlash, there’s a lot of sensitivity around that, and boards are really taking notice.
2. What is GDPR compliance and what are its implications?
A description frequently used is that this regulation is “an evolution, not a revolution.” Robust data protection laws exist now but the risk of fines and requirement for accountability are factors that are really changing the way people think about them. This means a stronger focus on bringing organisations into compliance with the legislation, and for some this involves working to bring compliance first with current laws, then the additional requirements of GDPR.
As far as accountability is concerned, there are a number of aspects to consider. A key one for us is compiling our ‘records of processing’. There are varied views on what this requires, ranging from very detailed data inventories to something more high level. In brief, you need to record what personal data you have, where it came from, how long you’ve had it and where you’re keeping it, what you plan to do with it, where the risks and protections around it are, and what level of international transfers are going on. For a large global organisation like Pearson that’s a complex picture. It’s even further complicated by the fact we are often acting as a data processor for our customers rather than a data controller. But once this is done, it really helps support lots of other activities required by GDPR, such as managing user rights, conducting risk assessments and implementing privacy by design.
3. What does GDPR mean for a legal team like yours?
We are 150 globally in the legal team, including about 70 lawyers as well as other legal professionals, administrative staff and paralegals. For us, GDPR is an area we need to stay on top of, since data privacy is identified as one of our key risks. More broadly, data privacy is an area we take very seriously. We take our responsibility to protect our customers’ and learners’ data extremely seriously and have systems, processes and staff devoted to implementing such security controls, and verifying data protection, across our business.
In recognition of the importance of data privacy for us, in 2014 we hired an expert data privacy lawyer who set up our Data Privacy Office as part of the legal team. Pretty quickly, the team grew to six people who are all privacy professionals or lawyers, based in the U.S. and the U.K.. We also get interim people to help as needed, such as a dedicated resource at the moment around programme development.
Fortunately, there’s a lot of overlap between what’s needed for the global privacy programme and what we need to do to comply with GDPR, so the whole team work closely together though do have some specific areas of focus. Increasingly, global regulations are coming into line with EU regulations. Our UK team is very focused on GDPR and though there might be nuances in some countries, we aim to achieve the same high standards outside of Europe. In practice, some country-specific regulations add complexity and make it challenging for us to take a global approach.
As sometimes happens in law, it can be tricky to know how to deal with different concepts in different countries. Take reliance on consent and legitimate interest under GDPR. That concept (‘legitimate interest’) is not widely understood nor part of the law outside Europe. Colleagues or clients in the U.S. have no idea what that means. And if we’re trying to come up with a global privacy notice that works universally, it can take some work to get the wording right. Lawyers are good at playing with language!
4. How do you keep up with market practice?
We are in a strong position as we have this dedicated team but compliance and awareness needs to extend beyond our team to the whole organisation – I’ll talk more later on about Awareness Week and other ways we address this. Our lawyers are bombarded by webinar invitations by various law firms and other suppliers, and a lot of our legal team staff attend webinars and in-person data protection training sessions because it’s useful to hear the information in a different format sometimes. It’s helpful for all of us to hear about market practices, both internal and external, and from there we can build targeted training that’s relevant to our lawyers. For example, one area we’re focused on is training in how to manage subject access requests which may get more numerous. Commercial lawyers handling contracts also need to be aware of the new requirements in both customer and supplier contracts, and it is helpful to understand how other organisations are approaching this – so we’re watching what approach large suppliers like Google, Salesforce and others are taking.
To get to know about market practices, LinkedIn is incredibly useful. You can find some very knowledgeable professionals regularly blogging, suggesting others’ material and being very quick to post updated regulatory guidance such as that coming from the EU regulators’ advisory body known as the Article 29 Working Party (WP29) (soon to be known as the European Data Protection Board (EDPB)). I try to follow and connect with lawyers and privacy professionals who understand more than the theory, who also know what to do in practice. And what is just as useful is seeing knowledgeable professionals challenge the views of others, it can really help highlight common misunderstandings with what is a complex regulation. GDPR is an area where you have to be very careful about misinformation. The Information Commissioners Office (ICO) has a blog series dedicated to busting GDPR myths and their GDPR page for organisations is very helpful. Professionals need to learn to navigate between what’s right and the distortions.
5. What is your timeline in rolling out GDPR processes?
Our data privacy office started working on our GDPR programme around two and a half years ago, so when I started working on GDPR a year ago, there was already a plan in place. Obviously it is constantly evolving. Recently, an external consultancy came to conduct an in-depth analysis of our GDPR readiness and they gave us a plan on points that need to be improved, such as refining our privacy impact assessment process and updating our incident response plan. As well as acting swiftly on these suggestions, we are in the process of getting our supplier contracts ready and looking to see how we should update our customer contracts to comply with GDPR.
Breach readiness will be a big area of focus for the next six months and for this we are working closely with the information security team. This includes lining up credit check organisations and eDiscovery vendors, so we are prepared should the worst case arise. In case of an emergency, you don’t want to spend 2 weeks lining up external support to deal with your situation. The turnaround time on breach notification will be 72 hours which is incredibly short when you take into account how difficult it can be to determine exactly what has happened.
6. What are the main challenges facing legal teams?
One of the main challenges relates to grey areas, aspects of the regulation that are still without consensus. For example, the notion of consent: The ICO (UK regulator) published some draft guidance on the new requirements relating to consent in March 2017, but it is still not finalised, and organisations still don’t know when to expect it as the ICO is waiting for the WP29 to publish theirs first. Other areas on which final guidance is still awaited is in relation to contracts between controllers and data processors, children’s data, and accountability, including documentation. We have had to go ahead with our preparations without the benefit of this given the size of the task for a large organisation like ours, and may need to make changes if our chosen approach needs refining once the guidance comes out. And that’s another key challenge – addressing a compliance challenge which requires the whole organisation to engage and be aware, not just the Legal and Information Security teams.
I do recognise we are fortunate to have dedicated resources for this project – this might represent a daunting task for a smaller organisation with a small legal team without specific privacy expertise. In that case, the importance of a risk-based approach is the only practical way to approach this. Again, there are plenty of useful resources out there.
7. How do you ensure that GDPR processes are followed at every level in the company?
A combination of bottom-up and top-down involvement seems to me to be the best way to approach this. It’s important to have a good governance structure to formalise this support, which also helps meet the accountability requirement in showing how compliance is driven. In our case, this takes the form of an executive committee, a steering committee of senior leaders from every business unit across the organisation, and a champions network of 80+ from all countries, office and business teams to help us with day-to-day engagement throughout Pearson.
We also organise an Awareness Week every year during which the mandatory annual training is issued. We hold webinars, local in-person training, run quizzes and post blogs, stories and guidance on our intranet. Our CEO and other executives filmed a short introductory video to underline the message that this is of vital importance to the company. We really try to present the concepts in very human and personal ways. For instance, we recently ran a story about a colleague who had been the victim of identity theft, and the impacts it has had on her life. That got a really good response. Hopefully that helps people understand why it’s so important to do everything we can to protect the personal data that is entrusted to us.
8. What resources would you recommend to a legal team about to roll out GDPR?
In terms of resources I’d recommend:
- ICO website – GDPR for organisations is here. It has useful guidance on compliance activities like the 12 steps to take to prepare, and a readiness checklist, plus more in-depth materials on things like data privacy impact assessments and marketing guidance.
- Isle of Man data protection commissioner has some really good practical easy-to-follow tools and information.
- Many law firms provide great materials, but I particularly like Fieldfisher’s Privacy Law Blog and Hunton & Williams Privacy Law Blog (one of the most global sources of information).
- Good industry bodies to get involved with are the IAPP, Future of Privacy Forum and the Data Protection Network, though there are many others.
We are very grateful to Catie Sheret for sharing her GDPR implementation expertise in such detail and for providing additional resources to help fellow lawyers get on the right GDPR track.