The Great GDPR Challenge: Overcoming Obstacles in Data Protection

The General Data Protection Regulation (GDPR) marked a monumental shift in the data protection landscape within the European Union (EU). Since its introduction on 25th May 2018, it has had a profound impact not only on EU-based organisations but also on any entity worldwide that handles personal data of EU residents. Despite its clear intention to safeguard individual privacy and empower citizens to take control of their data, the implementation and compliance with GDPR have posed significant challenges for businesses, governments, and other organisations alike. This blog explores the obstacles in GDPR compliance and offers insight into how these hurdles can be overcome.

Understanding the Scope and Impact of GDPR

Before delving into the challenges, it’s important to understand the broad scope and depth of the GDPR. The regulation was designed to replace the Data Protection Directive of 1995, an outdated legal framework that could not adequately address the challenges posed by the digital era. GDPR sets forth principles and regulations concerning the collection, processing, storage, and transfer of personal data within the EU, with significant penalties for non-compliance, including fines of up to €20 million or 4% of an organisation’s global annual turnover, whichever is higher.

GDPR applies to all organisations, regardless of their geographical location, that collect or process personal data of EU citizens. It strengthens rights for individuals, such as the right to access, the right to be forgotten, and the right to data portability, among others. These changes bring with them not only legal responsibilities but also operational, technical, and cultural shifts within businesses that have often struggled to adapt. Let’s explore some of the key obstacles to GDPR compliance and ways to overcome them.

The Challenge of Understanding GDPR Requirements

One of the first and most fundamental challenges businesses face is simply understanding the complexities of GDPR. It is an extensive and dense legal text that leaves room for interpretation in certain areas. For instance, terms such as “legitimate interest” and “appropriate technical measures” are subject to differing interpretations across industries and countries. This lack of clarity has caused confusion, with organisations unsure of how to practically apply some of the legal concepts within their operational frameworks.

Overcoming the Challenge: Expert Legal and Technical Guidance

To overcome this, many organisations have turned to legal experts and consultants who specialise in GDPR compliance. By seeking external guidance, businesses can better understand how to interpret and implement GDPR in their specific contexts. Moreover, training staff on data protection principles can ensure that everyone in the organisation has a clear understanding of their responsibilities. Building a GDPR-compliant culture starts with education and internal awareness.

Data Mapping and Inventory: A Daunting Task

Another significant obstacle is the sheer scale of data mapping and inventory required by GDPR. Organisations must document all personal data they process, including details on how the data was obtained, where it is stored, and with whom it is shared. This requires a thorough audit of all data flows across the organisation, which can be particularly complex for large companies or those with decentralised data storage systems.

Inadequate data mapping can lead to compliance failures, as organisations might overlook certain data streams or fail to implement necessary safeguards across all datasets. For companies operating with legacy systems, integrating new data protection protocols into outdated infrastructures is a further challenge.

Overcoming the Challenge: Leveraging Technology and Automation

To address this challenge, many organisations are turning to advanced technological solutions such as automated data mapping tools. These tools can streamline the process by automatically identifying and cataloguing personal data across systems. Additionally, data protection officers (DPOs), either internally appointed or outsourced, can play a critical role in managing data mapping processes, ensuring that data flows are accurately tracked and GDPR-compliant.

The Complexities of Cross-Border Data Transfers

For businesses operating globally, cross-border data transfers present another significant challenge under GDPR. The regulation restricts the transfer of personal data outside of the European Economic Area (EEA) unless certain conditions are met. These conditions include transferring data to countries with an “adequate” level of data protection, as recognised by the European Commission, or implementing safeguards such as standard contractual clauses (SCCs) or binding corporate rules (BCRs).

The invalidation of the EU-U.S. Privacy Shield in 2020, following the Schrems II ruling, further complicated cross-border data transfers to the United States, leading to significant uncertainty for companies that rely on transatlantic data exchanges.

Overcoming the Challenge: Adopting Alternative Mechanisms

In light of these difficulties, businesses need to adopt alternative legal mechanisms, such as SCCs or BCRs, to continue transferring data internationally while complying with GDPR. Additionally, companies may need to reassess their relationships with third-party vendors and service providers outside the EU to ensure that data-sharing agreements are GDPR-compliant. Some businesses have also opted to store personal data within the EU to avoid the complexities of cross-border data transfers altogether.

Data Subject Rights: Managing Requests and Compliance

GDPR grants individuals extensive rights over their data, including the right to access their data, the right to have their data corrected, the right to erasure (also known as the “right to be forgotten”), and the right to object to the processing of their data. While these rights are an important aspect of GDPR, they also present a logistical challenge for businesses, particularly those that deal with large volumes of personal data.

Organisations must respond to data subject requests within one month, a timeframe that can be difficult to meet, especially if the request involves complex data retrieval processes or spans multiple departments or systems. Failing to honour these requests in a timely and accurate manner can result in substantial fines and reputational damage.

Overcoming the Challenge: Developing Efficient Request Management Systems

To manage data subject rights effectively, organisations need to establish robust internal procedures for handling requests. This may involve setting up dedicated teams or systems to process requests efficiently and ensuring that data retrieval processes are streamlined across departments. Automation can also play a role here, with many companies implementing self-service portals that allow individuals to access or delete their data without the need for manual intervention.

Ensuring Third-Party Compliance

GDPR’s accountability principle makes it clear that organisations are responsible not only for their own data processing activities but also for the compliance of any third-party service providers or partners they engage with. This means that if a business shares personal data with a supplier, vendor, or processor, it must ensure that those parties also adhere to GDPR’s stringent requirements. This presents a significant challenge for organisations that rely on a complex web of third-party relationships to function.

Many businesses struggle to assess the compliance of their partners, particularly when dealing with smaller organisations that may not have the resources or expertise to fully understand their GDPR obligations. Additionally, the process of regularly auditing and monitoring third-party compliance can be both time-consuming and costly.

Overcoming the Challenge: Contractual Safeguards and Continuous Monitoring

To address this issue, organisations should implement robust contractual safeguards with all third-party processors, clearly outlining GDPR compliance requirements and assigning liability in the event of a data breach or non-compliance. Regular audits and assessments should also be conducted to ensure ongoing compliance. Tools that track and monitor third-party compliance in real-time can be particularly useful, providing businesses with visibility over their data ecosystem and helping to identify any potential vulnerabilities early on.

Data Breaches: Prevention and Response

One of the most publicised aspects of GDPR is its stringent requirements around data breaches. In the event of a breach that compromises personal data, organisations must notify the relevant supervisory authority within 72 hours of becoming aware of it. In cases where the breach is likely to result in a high risk to the rights and freedoms of individuals, businesses must also inform the affected individuals without undue delay. The reputational and financial damage associated with data breaches can be severe, making data security a top priority for GDPR compliance.

However, the dynamic nature of cyber threats and the increasing sophistication of attackers means that preventing data breaches is no easy task. Many businesses are unprepared for the complexity of modern cyberattacks and lack the necessary resources to effectively protect their data.

Overcoming the Challenge: Investing in Cybersecurity and Breach Response Planning

To mitigate the risk of data breaches, organisations must invest heavily in cybersecurity measures, including encryption, firewalls, intrusion detection systems, and regular security audits. Cyber hygiene, such as ensuring software and systems are updated regularly, is also critical in preventing breaches. Additionally, businesses should develop comprehensive breach response plans that outline the steps to take in the event of a breach, including the roles and responsibilities of each team member. Having a clear, rehearsed plan in place can significantly reduce the impact of a breach and ensure compliance with GDPR’s notification requirements.

Data Minimisation and Retention Challenges

GDPR introduces the principle of data minimisation, which requires organisations to limit the collection of personal data to only what is necessary for the specific purpose for which it is being processed. Additionally, the regulation mandates that personal data should not be kept for longer than is necessary. While these principles are relatively straightforward in theory, they can be difficult to implement in practice, particularly for businesses that have traditionally collected large amounts of data “just in case” it may be useful later on.

The challenge lies in determining what constitutes “necessary” data and how long that data should be retained, particularly when balancing legal requirements with business needs. For example, certain industries, such as healthcare or finance, may be subject to regulations that require data retention for a specific period, which may conflict with GDPR’s minimisation and retention principles.

Overcoming the Challenge: Implementing Data Retention Policies and Procedures

To overcome these challenges, businesses should develop clear data retention policies that outline how long different types of personal data will be stored and under what circumstances it will be deleted. Regular audits of data stores can help ensure that unnecessary or outdated data is purged, reducing the risk of non-compliance. Additionally, implementing data anonymisation or pseudonymisation techniques can allow businesses to retain certain data for longer periods without violating GDPR, as anonymised data falls outside the scope of the regulation.

Cultural Shifts: Embedding Data Protection into Organisational Practices

Finally, one of the most significant challenges of GDPR compliance is the cultural shift required within organisations. Data protection cannot simply be the responsibility of a single department or team; it must become a fundamental part of the organisation’s ethos and operational processes. This requires ongoing commitment from senior leadership and buy-in from employees at all levels of the business.

Embedding data protection into everyday practices can be difficult, particularly in businesses that have traditionally prioritised speed, convenience, and profit over privacy and security. Changing this mindset requires time, resources, and ongoing education.

Overcoming the Challenge: Building a Privacy-First Culture

To build a privacy-first culture, organisations need to prioritise data protection at every level of the business. This means appointing dedicated data protection officers (DPOs), if required, and providing regular training and updates to all employees. Leadership should model best practices and ensure that data protection is considered in all decision-making processes. When data protection becomes a core organisational value, compliance becomes easier to maintain, and the risk of breaches or non-compliance is reduced.

Conclusion: Turning GDPR Challenges into Opportunities

While GDPR presents significant challenges, it also offers opportunities for organisations to improve their data management practices and build trust with their customers. By addressing the obstacles outlined above, businesses can not only achieve compliance but also position themselves as leaders in data protection, gaining a competitive advantage in an increasingly privacy-conscious world. Through strategic investments in technology, robust data protection policies, and a commitment to cultural change, organisations can turn GDPR compliance from a burden into an opportunity for growth and innovation.

The great GDPR challenge is ongoing, but by approaching it with foresight, diligence, and adaptability, businesses can overcome its obstacles and thrive in the digital age.