GDPR- Unlearn and re-learn: Busting the GDPR Myths

If a sapling was planted every time there was a misconception about GDPR, we'd have probably defeated global warming by now. Any new revolution, be it in technology, philosophy or any other dimension, always creates chaos and confusion during its inception, bringing along with it, a plethora of misconceptions as well. However, it is time we got it all cleared from our heads.

You might have been a victim of this contagion as well, or have you not? Let us unlearn the (un)popular misconceptions and try to bring in the clarity of crystals to our GDPR understanding.

Consent is an alias of GDPR

The worst of dreams by the GDPR experts will probably involve them yelling 'Consent alone is not GDPR!!', into the psychic space of their co-workers. Because this is, by far, the biggest misunderstanding. GDPR does put high emphasis on consent, but it is not the whole picture.

There are six lawful bases and they're all equally valid. Say you are a firm based out of Amsterdam and you are employing locals. You don't need to get their consent for storing their information on your register, because the law mandates it. It will fall under the 'legal obligation' umbrella. If a person gets interested about your product and asks for a quote, you don't have to bother him with consent. Because you can process his contact information based on 'Contract'.

Hence, we must keep an open eye and consider all the six lawful bases before applying them to our data processing activities.

Consent is just a check box

Most of us are thinking that the holy check in 'I agree to the Terms & Conditions and Privacy Policy' is the consent we need. Well, no! In fact, that is the first example of what is not a consent, in the ICO website.

There are specific rules to be kept in mind when consent is taken. We must first state all ways in which we shall process the data we are collecting. And furthermore, we must not make it a precondition of a service, which is exactly what we do with the 'I agree to the Terms & Conditions and Privacy Policy' check box. Consent must be given freely with no pre-checked boxes. And even if the boxes are not checked by the subject, the service must not be denied. Hence, before taking the consent route, the whole processing tree must be analysed, and the decision on whether or not to take this route should be made.

GDPR is the Villain

When GDPR ﬁrst came into picture, there was a massive wave of negativity that accompanied it. Social media was ﬂooded with posts talking about how GDPR will cause a huge expense hole in organisations’ budget and why it will create so many problems that didn’t exist in the ﬁrst place. Many organisations, by default, assumed that they shall end up non-compliant and some of them even expressed their idea of conjuring up funds for a possible ﬁne due to non-compliance. One could almost feel the need to hit the psychological reset button.

However, we must understand in our bones that GDPR is a set of laws that just demand Good Business Practice; GDPR must be welcomed with positivity because not only does it provide a company with a better legal and policy framework, but it brings acompetitive advantage as well.

GDPR, in many ways, will change the way businesses are conducted, but one of the main shall be the cognitive advantage that a company shall possess in the minds of its clients, when it becomes GDPR compliant. A GDPR compliant company shall do better positioning in their customer’s head when they can ﬂaunt their compliance tag.

My business is small, so I'm kind of exempt.

Only in specific cases like the one for appointing a DPO, does the GDPR talk about company sizes. GDPR has an attitude and it doesn't care about your firm's size. If you happen to, in anyway, cross any data path of any EU resident, you are under the GDPR radar.

Forget small business! Even if you're a solo-pruner who runs a fashion blog, with an emailing list under your sleeve, you must be GDPR compliant.

I don't collect data from users, so I'm cool.

No, you're not. GDPR originates from 'what data you hold', which means that not only a massive introspection into
your data inventory is needed, but also an analysis of 'all' data that you have on subjects is required. Even if you don't collect data through web forms or portals, you still need to worry about the data pertaining to EU subjects.

You might scrap the publicly available information on individuals and try to convert them into leads. You might even have purchased your competitor's leads (Highly not recommended, though. Just saying) or it could be a person on social media who has liked your page. In all these cases, though you haven't obtained data from the user directly, you still have to respect the data you have on him/her and process it under the GDPR.

There is only one type of consent

Firstly, there's private data and sensitive data. The former refers to data like the IP address, pin code etc., while the latter covers aspects like religion, sexual orientation etc. Naturally, the consent mandated for these types vary.

There are two types of consent : Explicit & Implied Consent

Implied consent is when the subject, by providing you a particular data, is accepting it to be used in a certain way. In effect, you don't have to shout out loud by asking him to check a box, but you can just 'imply' consent by stating the way the data is going to be used. But it does have to be unambiguous, which means there should not be more than one interpretation possible for that particular way in which you plan to use the data. Explicit consent is where the subject literally says 'I agree' to your consent statement, which must clearly state what data you are collecting, how you are going to use it, what it means to your subject and how this data will be transferred and the related risks of the transfer.Yeah, that's a lot. But this consent is required only when sensitive data is collected.

I need to be a data democracy: All rights to all

The data subject rights caught so much attention that GDPR pursuers became too obsessed with it. For example, right to be forgotten was seen as a white elephant in the room and it perhaps got too much attention. Not all rights need to be given all the time. GDPR gives us six lawful bases, which is nothing but the underlying reason behind processing of data. And as your reason varies with the kind of data and processing method, the data rights you need to offer shall vary as well.

Lawful Basis(row)/Rights applicable (column)	Right to be informed	Right of access	Right to rectification	Right to erasure	Right to restrict processing	Right to data portability	Right to object	Rights related to automated decision making
Consent	Y	Y	Y	Y	Y	Y
Contract	Y	Y	Y			Y		Y
Legal Obligation	Y	Y	Y	Y				Y
Vital Interests	Y	Y	Y
Public Tasks	Y	Y	Y				Y
Legitimate interests	Y	Y	Y	Y	Y		Y	Y

Consider the above depiction, which correlates between rights and the lawful basis. A data field processed on a basis of contract, cannot be asked to be erased as such. Similarly, a data processed for vital interests cannot be objected. So, being aware of why you process the data that you do, and categorizing them based on applicable rights and lawful basis is an extremely crucial function.

I can use 'Legitimate Interest' for marketing uses relating to personal data, without consent.

The best one is saved for the last, because this is something that can really get you into trouble. Legitimate interest is not the silver bullet you can use when you have run out of options. Usage of legitimate interest has to be weighed against the privacy of the user before it can be applied to a marketing related activity(Any activity, for that matter! ). Even though marketing is an example of legitimate interest given by the ICO itself, it does not rule out the fact that the user must agree to be communicated for marketing.

A clear 'Opt-in' is always preferred, which is not treated as consent, and it is, in some form, necessary to proceed with marketing communications.