Six predictions now the GDPR is in place

Posted by John Kleeman
So the European GDPR is in place now. Questionmark like most other companies has been working hard in the last two years to ensure we are compliant and that our customers in and outside Europe can be compliant with the GDPR. See our trust center or summary for information on Questionmark’s compliance.

Is it all done and dusted? My email inbox seems to have a few less promotional emails in it. But is this because of the holiday weekend or have companies really taken my name off their mailing lists? Here are six predictions for what we’ll see going forwards with the GDPR.

1. The May 25th 2018 date will matter much less going forwards than backwards

A picture of a dog with a Christmas hatCompanies have been rushing to meet the May 25th date, but GDPR and privacy is a destination not a journey. There is a famous slogan “a dog is for life not just for Christmas” encouraging people to look after their dog and not just buy it as a cute puppy. Similarly the GDPR is not just something you get compliant with and then ignore. You need to include privacy and compliance in your processes forever.

No one will care much whether you were compliant on May 25th 2018. But everyone will care whether you are meeting their privacy needs and following the law when they interact with you.

2. History will judge the GDPR as a watershed moment where privacy became more real

Nevertheless I do think that history will judge the GDPR as being a seminal moment for privacy. Back in the early 2000s, Microsoft popularized the concept of security by design and security by default when they delayed all their products for a year as they improved their security. Nowadays almost everyone builds security into their systems and makes it the default because you have to to survive.

Similarly the GDPR encourages us to think of privacy when we design products and to make privacy the default not an afterthought. For example, when we collect data, we should plan how long to keep it and how to erase it later. I suspect in ten years time, privacy by design will be as commonplace as security by design – and the GDPR will be the key reason it became popular.

3. Many other jurisdictions will adopt GDPR like laws

Although the GDPR is over-complex, it has some great concepts in it, that I’m sure other countries will adopt. It is appropriate that organizations have to take care about processing peoples’ data. It is appropriate that when you pass people’s data onto a third party, there should be safeguards. And if you breach that data, it is appropriate that you should have to be held accountable.

We can expect lawmakers in other countries to make GDPR-like laws.

4. Supply chain management will become more important

Diagram showing one data controller with two data processors. One data processor has two sub-processors and one data processor has one sub-processorUnder the GDPR, a Data Controller contracts with Data Processors and those Data Processors must disclose their Sub-processors (sub-contractors). There is positive encouragement to choose expert Data Processors and Sub-processors and there are consequences if processors fail their customers. This will encourage organizations to choose reputable suppliers and to review processors down the chain to make sure that everyone is following the rules. Choosing suppliers and Sub-processors that get themselves audited for security, e.g. under ISO 27001, is going to become more commonplace.

This will mean that some suppliers who do not have good enough processes in place for security, privacy and reliability will struggle to survive.

5. People will be the biggest cause of compliance failures

Organizations set up processes and procedures and put in place systems and technology to run their operations, but people are needed to design and run those processes and technology. Some GDPR compliance failures are going to be down to technology failures, but I predict the majority will be down to people. People will make mistakes or judgement errors and cause privacy and GDPR breaches.

If you are interested in this subject, Amanda Maguire of SAP and I gave a webinar last week entitled “GDPR is almost here – are your people ready?” which should shortly be available to view on the SAP website. The message we shared is that if you want to stay compliant with the GDPR, you need to check your people know what to do with personal data. Testing them regularly is a good way of checking their knowledge and understanding.

6. The GDPR and privacy concerns will encourage more accurate assessments

Last but not least, I think that the GDPR will encourage people to expect more accurate and trustworthy tests and exams. The GDPR requires that we pay attention to the accuracy of personal data; “every reasonable step must be taken to ensure that personal data that are inaccurate … are erased or rectified without delay”.

There is a strong argument this means that if someone creates a test or exam to measure competence, that the assessment should be accurate in what it claims to measure. So it needs to be authored using appropriate procedures to make it valid, reliable and trustworthy. If someone takes an assessment which is invalid or unfair, and fails it, they might reasonably argue that the results are not an accurate indication of their competence and so that personal data is inaccurate and needs correcting.

For some help on how you can make more accurate assessments, check out Questionmark white papers at www.questionmark.com/learningresources including “Assessment Results You Can Trust”.

 

 

Delivering exams in Europe? What must you do for Data Protection?

John Kleeman HeadshotPosted by John Kleeman

Regulators in Europe are increasingly active in data protection, and most European organizations are reviewing their suppliers to ensure data protection and security. If you are an awarding body, multinational corporation or publisher delivering tests and exams in Europe, what do you need to do to stay comfortably within European Union data protection laws?

There is a fundamentally different approach to personal privacy between Europe and in the USA. In the USA, there is often a cultural expectation that technology and market efficiency are pre-eminent, but in Europe, the law requires technology to ensure privacy.

We all remember that in the US, citizens have a right to  “life, liberty and the pursuit of happiness” and that in France, people have a right to “Liberty, Equality and Fraternity”. But in the 21st century privacy probably one of the strongest discriminators between the continents. In a world being transformed by technology, the EU data protection directive firmly says that computer systems are designed to serve man, and not man serve the computer. Data processing systems must respect the fundamental rights and freedom of people, and in particular the right to privacy.  Whether you think this is right or not, this is the law in Europe.

Increasingly European governments are strengthening their laws on data protection and the penalties for not complying. So if you are delivering your exams in Europe, what do you need to do?  The key responsibilities for data protection are held by what EU Law calls the “Data Controller”.  Most sponsors of assessments – awarding bodies, corporations delivering tests, publishers and educational institutions are Data Controllers and they are responsible for protecting the data from the end user (Data Subject) and ensuring that any processors and sub-processors follow the rules.  The Data Controller will also be liable if anything goes wrong.

Data Subject - Data Controller - Data Procesor - Sub-processor

Here is a summary of the 12 responsibilities of a Data Controller under EU Law when delivering assessments:

1. Tell test takers what is being done with their data including how you are ensuring the assessment is fair.

2. Obtain informed consent from your test takers including relating to who will see their results.

3. Ensure that data is accurate, which in the assessment context likely means that assessments are reliable and valid.

4. Delete personal data when no longer needed.

5. Protect data against unauthorized destruction, loss, alteration and disclosure. If assessment results are lost, altered or disclosed without permission, you may be liable for penalties.  You need to put in place technical and organizational measures and ensure that data is only disclosed appropriately and that any data processors follow the rules strictly.

7. Take care transferring data outside Europe. You need to ensure that if assessment results or other personal data is transferred outside Europe that the EU rules are followed, this is particularly important as not all organizations outside Europe understand data protection, and so they may inadvertently break the rules.

8. If your assessments collect “special” categories of data, including racial or ethnic origin and health information, there are additional rules, get advice on how to ensure there is explicit consent from test takers.

9. People have a right to request data that you hold on them, and in some countries this includes exam results and all the personal details you hold on them. Be prepared to receive such requests.

10. If the assessment is high stakes, ensure there is a human review of automated decision making. Under the EU directive, technology serves man, not the other way round and taking decisions without human review is not always allowed.

11. Appoint a data protection officer and train your personnel

12. Work with supervisory authorities (you have to register in some countries) and have a process to deal with data protection complaints.

As a company established in both the EU and the US, Questionmark has a good understanding of data protection, and if  you use Questionmark OnDemand, several of these responsibilities are aided and ameliorated.

I hope this introduction and summary has been helpful. For more information the requirements of data protection when delivering assessments,  download our white paper (free with registration)  Responsibilities of a Data Controller When Assessing Knowledge, Skills and Abilities.