The Nineteen Responsibilities of an Assessment Data Controller under the GDPR

John KleemanPosted by John Kleeman

Back in 2014,  Questionmark produced a white paper covering what at the time was a fairly specialist subject – what assessment organizations needed to do to ensure compliance with European data protection law. With the GDPR in place in 2018, with its extra-territorial reach and potential of large fines, the issue of data protection law compliance is one that all assessment users need to consider seriously.

Data Controller with two Data Processors, one of which has a Sub-Processor

Myself, Questionmark Associate Legal Counsel Jamie Armstrong and Questionmark CEO Eric Shepherd have now rewritten the white paper to cover the GDPR and published it this week. The white paper is called  “Responsibilities of a Data Controller When Assessing Knowledge, Skills and Abilities”. I’m pleased to give you a summary in this blog article.

To remind you, a Data Controller is the organization responsible for making decisions about personal data, whereas a Data Processor is an organization who processes data on behalf of the Data Controller. As shown in the diagram, a Data Processor may have Sub-Processors. In the assessment context, examples of Data Controllers might be:

  • A company that tests its personnel for training or regulatory compliance purposes;
  • A university or college that tests its students;
  • An awarding body that gives certification exams.

Data Processors are typically companies like Questionmark that provide services to assessment sponsors. Data Processors have significant obligations under the GDPR, but the Data Controller has to take the lead.  The Nineteen Responsibilities of an Assessment Data Controller under the GDPR 1. Ensure you have a legitimate reason for processing personal data 2. Be transparent and provide full information to test-takers 3. Ensure that personal data held is accurate 4. Review and deal properly with any rectification requests 5. Respond to subject access requests 6. Respond to data portability requests 7. Delete personal data when it is no longer needed 8. Review and deal properly with any erasure requests 9. Put in place strong security measures 10. Use expert processors and contract with them wisely 11. Adopt privacy by design measures 12. Notify personal data breaches promptly 13. Consider whether you need to carry out a Data Protection Impact Assessment 14. Follow the rules if moving data out of Europe 15. If collecting “special” data, follow the particular rules carefully 16. Include meaningful human input as well as assessment results in making decisions 17. Respond to restriction and objection requests 18. Train your personnel effectively 19. Meet organisational requirementsBack in 2014, we considered there were typically 12 responsibilities for an assessment Data Controller. Our new white paper suggests there are now 19. The GDPR significantly expands the responsibilities Data Controllers have as well as makes it clearer what needs to be done and the likely penalties if it is not done.

The 25 page white paper:

  • Gives a summary of European data protection law
  • Describes what we consider to be the 19 responsibilities of a Data Controller (see diagram)
  • Gives Data Controllers a checklist of the key measures they need from a Data Processor to be able to meet these responsibilities
  • Shares how Questionmark helps meet the responsibilities
  • Comments on how the GDPR by pushing for accuracy of personal data might encourage more use of valid, reliable and trustworthy assessments and benefit us all

The white paper is useful reading for anyone who delivers tests and exams to people in Europe – whether using Questionmark technology or not. Although we hope it will be helpful, like all our blog articles and white papers, this article and the white paper are not a substitute for legal advice specific to your organization’s circumstances. You can see and download all our white papers at www.questionmark.com/learningresources and you can directly download this white paper here.

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”.

 

 

Can you be GDPR compliant without testing your employees?

Posted by John Kleeman

The GDPR is a new extra-territorial, data protection law which imposes obligations on anyone who processes personal data on European residents. It impacts companies with employees in Europe, awarding bodies and test publishers who test candidates in Europe, universities and colleges with students in Europe and many others. Many North American and other non-European organizations will need to comply.

See my earlier post How to use assessments for GDPR compliance for an introduction to GDPR. The question this blog post addresses is whether it’s practical for a large organization to be compliant with the GDPR without giving tests and assessments to their employees?

I’d argue that for most organizations with 100s or 1000s of employees, you will need to test your employees on your policies and procedures for data protection and the GDPR. Putting it simply, if you don’t and your people make mistakes, fines are likely to be higher.

Here are four things the GDPR law says (I’ve paraphrased the language and linked to the full text for those interested):


1. Organizations must take steps to ensure that everyone who works for them only processes personal data based on proper instructions. (Article 32.4)

2. Organizations must conduct awareness-raising and training of staff who process personal data (Article 39.1). This is extended to include “monitoring training” for some organizations in Article 47.2.

3. Organizations must put in place risk-based security measures to ensure confidentiality and integrity and must regularly test, assess and evaluate the effectiveness of these measures. (Article 32.1)

4. If you don’t follow the rules, you could be fined up to 20 million Euros or 4% of turnover. How well you’ve implemented the measures in article 32 (i.e. including those above) will impact how big these fines might be. (Article 83.2d)


So let’s join up the dots.

Firstly, a large company has to ensure that everyone who works for it only processes data based on proper instructions. Since the nature of personal data, processing and instructions each have particular meanings, this needs training to help people understand. You could just train and not test, but given that the concepts are not simple, it would seem sensible to test or otherwise check their understanding.

A company is required to train its employees under Article 39. But the requirement in Article 32 is for most companies stronger. For most large organizations the risk of employees making mistakes and the risk of insider threat to confidentiality and integrity is considerable. So you have to put in place training and other security measures to reduce this risk. Given that you have to regularly assess and evaluate the effectiveness of these measures, it seems hard to envisage an efficient way of doing this without testing your personnel. Delivering regular online tests or quizzes to your employees is the obvious way to check that training has been effective and your people know, understand and can apply your processes and procedures.

Lastly, imagine your company makes a mistake and one of your employees causes a breach of personal data or commits another infraction under the GDPR? How are you going to show that you took all the steps you could to minimize the risk? An obvious question is whether you did your best to train that employee in good practice and in your processes and procedures? If you didn’t train, it’s hard to argue that you took the proper steps to be compliant. But even if you trained, a regulator will ask you how you are evaluating the effectiveness of your training. As a regulator in another context has stated:

“”where staff understanding has not been tested, it is hard for firms to judge how well the relevant training has been absorbed”

So yes, you can imagine a way in which a large company might manage to be compliant with the GDPR without testing employees. There are other ways of checking understanding, for example 1:1 interviews, but they are very time consuming and hard to roll out in time for May 2018. Or you may be lucky and have personnel who don’t make mistakes! But for most of us, testing our employees on knowledge of our processes and procedures under the GDPR will be wise.

Questionmark OnDemand is a trustable, easy to use and easy to deploy system for creating and delivering compliance tests and assessments to your personnel. For more information on using assessments to help ensure GDPR compliance visit this page of our website or register for our upcoming webinar on 29 June.