General Data Protection Regulation (GDPR)

What is GDPR?

The General Data Protection Regulation (GDPR) came into force on the 25th May 2018

GDPR replaces the previous EU Data Protection regulation and intends to:

  • strengthen the data protection offered to individuals regarding their personal information.  Personal information is defined as information that relates to an identified or identifiable individual e.g. this could be a name, IP address, etc.;
  • standardise data privacy laws across the European Union (EU);
  • empower all EU citizens when it comes to data privacy;
  • change the way organisations approach data privacy.

The regulation applies to all organisations that offer goods and services or monitor the behaviour of EU citizens in any way. It covers both EU and non-EU based organisations.

Who does GDPR apply to?

GDPR applies to both controllers and processers of data.

A controller of data determines the purposes and means of processing personal data and has legal requirements under the new regulations e.g. to maintain records of personal data and processing activities.

A processor of data is responsible for processing personal data on behalf of a controller and ensure processors comply with GDPR.

GDPR includes an accountability principle i.e. businesses must demonstrate compliance that includes any data processing supply chain the business might have.  As a result GDPR is a matter for the entire organisation – not just for procurement.

The GDPR sets out seven key principles for your approach to processing personal data:

  • Lawfulness, fairness and transparency;
  • Purpose limitation;
  • Data minimisation;
  • Accuracy;
  • Storage limitation;
  • Integrity and confidentiality (security);
  • Accountability;

The Information Commissioner’s Office (ICO) has issued specific guidance on GDPR and who is affected by it.  You should refer to this guidance for more detailed information.

For contracts awarded before 25th May 2018:

To ensure compliance with these new regulations, you may have already been contacted by public sector buyers if you process data as part of a current contract.

It is therefore important for you to identify your internal processes or external suppliers that process data on your behalf (many organisations already have a GDPR implementation lead who will have been compiling this information).  You should then: 

  • write to all of your own suppliers notifying them of changes you intend to make to relevant contracts to bring them into line with GDPR;
  • conduct due diligence on existing contracts to ensure your suppliers can implement the appropriate technical and organisational measures to comply with GDPR i.e. provide guarantees of their ability to comply with the regulations;
  • update the specification and service delivery schedules to set out clearly the roles and responsibilities of the controller, processor and any sub-processors;
  • update relevant contract terms and conditions by issuing contract variations, using the change control procedure as set out in your own documentation;

For contracts awarded after 25th May 2018

For contracts awarded after 25 May 2018, you should ensure:

  • you undertake sufficient due diligence of new suppliers to ensure they can implement the appropriate technical and organisational measures to comply with GDPR i.e. provide guarantees of their ability to comply with the regulations;
  • terms and conditions are updated; 
  • for relevant contracts i.e. which include data processing activities, apply the guidance at Annex B to all stages of the procurement and relevant documentation.

Please refer to the Scottish Government GDPR Policy Note for further information or to the contract owner for specific guidance during the tender process of the performance of the contract.