Posted 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.
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.