GDPR: What You Need to Know
Businesses, large and small, are in the midst of preparing for compliance with the European Union’s new data privacy laws: The General Data Protection Regulation, or the GDPR, which will go into effect on May 25, 2018.
The GDPR is very broad in scope and can apply to businesses both in and outside of the EU. Businesses that don’t comply with the GDPR could face heavy fines.
Here’s what you need to know about the GDPR. (Note: You should consult your own legal counsel to determine if you are subject to the requirements of the GDPR.)
What is GDPR?
GDPR is short for the General Data Protection Regulation that goes into effect on May 25, 2018. It was passed by the European lawmakers to create a harmonized data privacy law across all the EU member states. Its purpose is to:
- Support privacy as a fundamental human right;
- Require companies that handle personal data to be accountable for managing that data appropriately; and give individuals rights over how their personal data is processed or otherwise used.
What is Personal Data?
In a nutshell, GDPR defines personal data as “any information relating to an identified or identifiable natural person.”
Okay, so what does that mean?
In addition to the kinds of information you might think about – name, address, email address, financial information, contact information, identification numbers, etc., personal data can in some cases be information related to your digital life, like an IP address, geolocation, browsing history, cookies, or other digital identifiers.
It also could mean information about a person, including their physical, mental, social, economic or cultural identities.
In short, if information can be traced back to or related in some way to an identifiable person, it is highly likely to be personal data. You can find out more about the GDPR here.
What rights does the GDPR provide to individuals?
There are several rights an individual may exercise under the GDPR, including:
- Right of access: Individuals can ask for a copy of the personal data retained about them and an explanation of how it is being used
- Right to rectification: Individuals have the right to correct, revise or remove any of the personal data retained about them at any time
- Right to be forgotten: Individuals can ask to delete their personal data
- Right to restrict processing: If an individual believes, for example, that their personal data is inaccurate or collected unlawfully, the individual may request limited use of their personal data
- Right of portability: Individuals have the right to receive their personal data in a structured, commonly used and machine-readable format
- Right to object: Where an individual decides that they no longer wish to allow their personal data to be included in analytics or to receive direct marketing emails or other personalized (targeted) marketing content at any time, the individual may opt out of use of their data for these purposes
Please note that these rights are not absolute, and limitations/exceptions may apply in some cases.
Some responsibilities of the GDPR you should understand
Generally speaking, there are two types of parties that have a responsibility regarding the handling of data: the “controller” and the “processor.” It is important to determine whether you are acting as a controller or a processor and understand your responsibilities accordingly.
A “data controller” determines the purposes, conditions and means of the use of personal data.
A “data processor” on the other hand, only acts on the instructions of the “controller” and processes personal data on their behalf.
So, what does this mean for you?
For Resellers: You are the processor in relation to your customer’s data. Since NetEarth One. Inc. acts as the Registrar on record, this also makes us a data controller for the customer account data.
It is your responsibility to ensure that you have the necessary notices and/or consents in place in order to transfer personal data to us for use.
In addition, we are reviewing and updating, as necessary, our agreements with you and with our subcontractors (to include the necessary GDPR terms), as well as notices, policies and internal processes, features, and templates to assure our compliance and help you achieve compliance.
How does the GDPR affect your business?
Individuals, companies, or businesses that have a presence in the EU or, if no presence, offer goods or services to, or monitor the behavior of, individuals in the EU need to comply with this law. Please consult with your own legal counsel about whether GDPR applies to you and your business.
What do you need to do differently to comply with GDPR?
If the GDPR applies to you, there are various obligations you will need to comply with in order to continue doing business with your customers from the EU. Luckily, not all of these obligations are new, so you should be complying with some of them already.
The most important differences in this context are as follows:
- More information about your use of personal data must be communicated to your customers. You should make sure that your privacy notices/policies are updated to reflect the new requirements of the GDPR, including setting out the purposes of your processing personal data, how long you are retaining such data, and what legal basis for use of personal data are you relying on.
- You should determine the legal basis for your use of personal data: If you are relying on consent to use your customers’ data you should ensure that the consent you have meets the new requirements of the GDPR (more details on this below). Please note that sending marketing emails or showing promotional content in any form to your customers may require, in certain circumstances, prior opt-in consent from them. As a reminder, you have already agreed through acceptance of our terms of service to lawfully obtain and process all personal data appropriately and have attested that you have permission to expose your customers to promotional content.
- You will also need to comply with the rights provided to individuals by the GDPR. See section above “What rights does the GDPR provide to individuals?” for details.
To the extent that you have these obligations, LB will have tools in place to help support your compliance efforts – we’ll get into some detail about this below. These include methods for you to obtain consent on your website for all visitors and to show promotional content to your existing customers, as well as ways for you to confirm and document consent for new ones, too. (for those using the Supersite and/or Partnersite and Control Panel)
You should consult with your legal counsel on the above and your other obligations under GDPR.
What kind of Consent is required under the GDPR?
When in doubt, and you are relying on consent to market to your customers, express consent is typically your best option. You obtain and document express consent when you explicitly ask your potential customers for permission to send them emails and other marketing content, and they agree, and that agreement is recorded. LogicBoxes platform has ways for you to indicate whether you have obtained express or implied consent from a customer, outlined in more detail below.
There may be circumstances where you can rely on something similar to implied consent for sending emails or promotional content to customers even when subject to the GDPR. This is called a “soft opt-in” where –
- you have obtained their contact details in the context of a sale of a product or service,
- you are sending emails and showing personalized ads relating to similar products or services
- the customer has the ability to opt-out of receiving such emails when they first provided their data when making a purchase and in every subsequent communication sent from you.
You should consult with your legal counsel to determine whether you can rely on the soft opt-in going forward under the GDPR. If you have customers with soft opt-in consent, you can store them as implied consent, but you will need to maintain your own documentation about how you obtained that soft opt-in consent.
Your customers should also be given an easy way to withdraw their consent in order to comply with the GDPR.
How is NetEarth One complying with GDPR?
NEO’s partners will be able to opt-out of receiving emails at any time by clicking the ‘unsubscribe’ link included at the bottom of every marketing email they receive from NEO. Additionally, when you visit our website, tools will be deployed to collect cookie consent in order to understand and record their choice of cookies and work with those that site visitors have allowed.
Overall, we’ve classified our plan in 3 broad categories:
1. Privacy Statement
The NEO Privacy Statement will explain what information we collect about you as a NEO partner and how we handle your personal data in this context where the GDPR applies. This statement will include descriptions of how your personal data will be used by NEO. Once published, we suggest that you review our Privacy Statement.
To the extent that you collect and process personal data, you are required to help your customers understand exactly what data is being collected and how it will be used. It is important that you have a Privacy Statement which contains details of your data processing activities.
Where required, we will also support you, as a NEO partner, in fulfilling GDPR related data subject requests you receive from your customers.
The European data protection authorities have expressed concern over the unlimited publication of personal data of domain name registrants in the WHOIS. To ensure our WHOIS output is compliant with the GDPR, we will implement the following changes starting May 25th, 2018:
- For Existing Domain Names:
- For all existing domain names, if either of the Registrant, Admin, Tech and/or Billing contacts is identified as being from the EU, we will mask the WHOIS output for that domain name with placeholder details in place of the users’ personal information (this service will be referred to as “GDPR WHOIS Protection”).
- All domain names that have Privacy Protection enabled, which is a separate service from GDPR WHOIS Protection, will continue to show the Privacy Protection contact details in the WHOIS output. In addition Privacy Protection provides the following services and functionality which are not available with GDPR WHOIS Protection:
- Privacy Protection enables registrant to get emails like domain sale inquiries if needed from the website http://privacyprotect.org/; and https://www.idcprivacy.com; and
- Privacy Protection allows the registrant to receive emails from a web form on the privacyprotect.org/idcprivacy.com website.
- For New Domain Registrations, Renewals, Transfers:
- All domain registrations and transfers from SuperSite will use the details from the customer contact created during the purchase flow or all the 4 contacts: Admin, Billing, Technical and Registrant contact.
- The customer can log in to the control panel and change the default contact or edit any of the 4 contacts
- If any of these contacts created/selected at the time of domain registration are from within the EU region, GDPR WHOIS Protection will be enabled for the Domain name by default during the purchase process. GDPR WHOIS Protection will work exactly as explained above
- Users will be alerted in the purchase flow that their personal information is protected in WHOIS results for free
- However, they still have the choice of layering Privacy Protection over GDPR WHOIS protection in order to receive emails like sale notices.
- WHOIS data for EU customers will always be masked regardless of whether or not Privacy Protection is enabled
- Partners using the LogicBoxes API must note two new attributes that will be recorded for domain names:
- Data protection eligibility: This indicates whether the contact information must be masked for a particular domain name.
- Data protection status: This indicates if the data protection status is currently turned ON or OFF.
- Partners using the API must incorporate the following changes to enable customers to manage their data protection settings:
- A new API method to disable and re-enable data protection;
- A new API method to resend an authorization email for disabling data protection;
- A new API method to cancel disabling request;
- Two new parameters in domains/details and domains/details-by-name API methods
- Data protection eligibility
- Data protection status
The LB engineering team is currently working on building these changes into the system. While they do that, to enable our API partners to plan ahead, LB will aim to share the final API specification with sample request and response patterns as soon as they are ready. Also, LB will confirm when the new API methods will be available on the demo environment.
Additionally, certain TLDs have restrictions owing to the requirements laid down by their respective Registries and will hence, result into limited GDPR compliance. We will be communicating our plan for these TLDs before the enforcement date.
Notwithstanding the foregoing, access to personal data of domain name registrants may be granted when such access is necessary for technical reasons such as for the facilitation of transfers, or for law enforcement when it is legally entitled to such access.
3. Cookie Consent
When you visit NetEarth One website, the web server passes on a cookie i.e., a string of text, to the web browser. These cookies enable our website to work, or work more efficiently, as well as provide information and additional services. Cookies are used for purposes of marketing, analytics or are essential for site functionality and making experiences better. To ensure that LB capture and record the appropriate consents for cookies deployed on the SS2 website / Partnersite / Control Panel, LB will be using TrustArc a globally trusted third-party compliance management tool. This way, you will be able to select and manage your cookie preferences. Generally, cookies may fall into any of the following categories*:
- Strictly necessary/required cookies: These cookies are required to enable core site functionalities. If you choose to block these cookies, you may not be able to register, login to the website, access certain parts of the website or make full use of the website.
- Functional cookies: In addition to core functionalities, these cookies collect and store login details, and can be opted out of
- Analytics cookies: These cookies analyze site usage by monitoring how users navigate through the website, and can be opted out of
- Advertising cookies: These cookies make users’ information available for targeted advertising, and can be opted out of
*The cookie definitions stated above are in accordance with how TrustArc (our cookie consent tool) identifies and segregates cookies.
***If you are using the API see below for how you will need to collect this information yourselves regarding your website***
What should you do as a partner?
To help you implement this, LB have shortlisted 3 open-source tools you may be able to utilise to obtain and manage cookie consent from your customers:
- Cookie Consent by Insites
- Cookie Consent
These are just three tools out of the many options available on the internet. We are not, by any means, endorsing these tools and recommend you seek advice from your legal team before you decide to proceed with any of these (or other) cookie consent tools for ensuring thorough compliance.
What if you have more questions about GDPR?
If you have specific questions about GDPR, you can reach out to us at firstname.lastname@example.org
You may be aware that there is likely to be further change in the near future about the way in which you can send marketing communication to your customers in the EU. The rules contained in the EU Directive on Privacy and Electronic Communications is under review and we are expecting a new ePrivacy Regulation to be finalized soon.
Once these new rules are finalized, we will be reviewing our forms and features again to provide our partners with the necessary tools to achieve compliance.
NOTE: The information included on this page is meant to guide you through the process of understanding GDPR and is not a substitute for legal advice. Find more information on the GDPR website.