Data Protection by Design and by Default – What does it mean?
You might hear the terms ‘privacy by design’ and ‘data protection by design and by default’ being used when discussing data protection. We’re frequently told to think privacy first, by considering data protection at the outset of any project and embedding it into policies and processes.
That’s all very well, but what does ‘Data Protection by Design’ really mean (and why is it also called ‘Privacy by Design’)? Do you need to be concerned about it? And how do you approach it in practice?
When you delve into the detail, this stuff quickly becomes complex. I’m going to try and avoid ‘privacy speak’ and jargon as much as I can and give an overview of how it all started and where we are now.
What is Privacy/Data Protection by Design?
Data Protection by Design (and also ‘by Default’) are terms ushered in by GDPR.
But the concept’s not new; the roots lie in Privacy by Design which has been around for some time. The brains behind Privacy by Design is Ann Cavoukian (a former Information and Privacy Commissioner for the Canadian province of Ontario). The concept was officially recognised as an essential component of fundamental privacy protection in 2010.
Cavoukian’s approach led to a new way of integrating privacy into products, business processes and policies. At its core it’s all about incorporating privacy measures at the design stage of a project or policy, rather than bolting them on afterwards.
The basis of this approach is to allow businesses to protect data and privacy without compromising commercial effectiveness right from Day One. I’m sure practitioners in other fields, for example Health and Safety or HR, will be familiar with this approach too.
Privacy by Design is based on seven principles designed to embed privacy into a project’s lifecycle. For more detail take a look at the IAPP’s Privacy by Design the foundational principles.
Fast forward to GDPR…
In the past, Privacy by Design was considered a great approach to take and adopted by many businesses worldwide – but it wasn’t mandatory. What’s different now is GDPR has made it a legal requirement.
GDPR also gave us the new term Data Protection by Design and by Default. This means organisations who fall under the scope of GDPR are obliged to put appropriate technical and organisational measures in place. These are commonly referred to as TOMs.
ICO guidance explains why, ‘businesses have a general obligation to implement appropriate technical and organisational measures to show that you have considered and integrated the principles of data protection into your processing activities.’
You need to make sure data protection principles, such as data minimisation and purpose limitation, are implemented effectively from the start. Crucially, such measures also need to focus on protecting people’s privacy rights.
The ICO has produced detailed guidance on the topic, to help you navigate how to consider data protection and privacy issues at the start of your projects, products and processes.
As an aside, this doesn’t mean everything grinding to a halt, claiming ‘I can’t do that because of GDPR’!
The more familiar you become with the basic principles, the easier it is to explain and incorporate them into your business. That’s not to say it’s always a piece of cake – sometimes it isn’t – but neither does it have to be the ball and chain some make it out to be.
Do you need to worry about this stuff?
There’s a short answer to this question – Yes! It’s a legal requirement under GDPR, albeit some organisations will take this very seriously and others will take a laxer approach.
How to make a start
This is a topic that can feel overwhelming to begin with. It’s common to think, “how on earth do I get everyone across our business to think about data protection and consider people’s privacy in everything we do?”
Here are a few tips on organisational measures;
- Benefits – think about how this approach is good for business and for your employees. It’s not just about trying to avoid data breaches, it’s about being trustworthy, taking care about how you handle and use people’s information. Privacy can be a brand asset; it can save costs and improve the bottom line. Increasingly organisations want to work with partners who can demonstrate sound privacy credentials. In many instances some of the most sensitive data your handle will be that of your employees. You all have an interest in making sure you handle everyone’s personal data in a secure and private way.
- Collaborate with InfoSec – The two disciplines of privacy and security are intrinsically linked. Businesses are most successful at protecting personal data when the Info Sec and Data Protection teams are joined up, working in tandem.
- Innovation – gone are the days when data protection was the place where dreams went to die! Sure, there are checks and balances that need to be considered when a great idea has privacy risks. When this happens, it’s up to the data protection team to be as innovative as their colleagues in helping that idea flourish. You never know – your approach to privacy can add value to a project, not diminish its effectiveness.
- Awareness – think about fresh ways to get the message across – data protection matters. This is a balancing act, because we wouldn’t want to scare people to the extent they worry about the slightest thing. Try to explain that once data protection principles are embedded, much of it is common sense.
- DPIAs – data protection impact assessments are one of the most important tools in your data protection by design toolbox (you don’t have one?). DPIAs are like a fire alarm – are your developers busy creating the most fabulous app ever? The DPIA should alert them to issues which, if ignored, might be project-breaking to fix later. As an aside, many DPIA templates I’ve seen are unduly complex and impossible for most staff to even attempt. So, try and make this an easier process – jettison the jargon and ask straight-forward questions.
- Data Governance – I apologise, this really is the dreariest of terms. Nonetheless, it’s seriously worth developing a governance framework across your business which sets out who is responsible, who is accountable for your data and how the data is used. It can help to make sure processes and policies are robust and kept up to date.
- Training – there’s nothing more empowering than effective training; making sure your people understand data protection principles, what privacy risks might look like and understand how it’s relevant to their job. Once this stuff is explained simply and effectively, it’s amazing how quickly this falls into place.
There’s an old saying: “What’s the best way to eat an entire elephant?” The answer is, “by breaking it into pieces first.”
You know your business – all you need to do now is break down the data protection stuff into manageable chunks as you apply them to your projects. The first couple might be tricky, but after that? There’s no substitute for getting stuck in and applying the principles to real-world problems. And the good news is there’s plenty of advice, training, templates and guidance available.
Philippa Donn, August 2020
The information provided and the opinions expressed in this document represent the views of the Data Protection Network. They do not constitute legal advice and cannot be construed as offering comprehensive guidance on the EU General Data Protection Regulation (GDPR) or other statutory measures referred to.