GDPR vs. DPA: 6 Key Differences & Compliance Best Practices

What Is GDPR? 

The General Data Protection Regulation (GDPR) is a data protection and privacy law enacted by the European Union (EU) in May 2018. GDPR aims to provide individuals with more control over their personal data and to harmonize data protection regulations across the EU. 

The regulation applies to all organizations that process personal data of EU residents, regardless of the company’s location. It imposes requirements on data handling practices, including obtaining explicit consent for data processing, maintaining transparency, ensuring data accuracy, and implementing appropriate security measures to safeguard personal data.

One of the key elements of GDPR is the introduction of substantial fines for non-compliance, which can reach up to €20 million or 4% of an organization’s global annual turnover, whichever is higher. Additionally, GDPR establishes the concept of ‘data subject rights,’ such as the right to access, correct, delete, and port one’s data. These provisions provide new legal rights for individuals and increase accountability among organizations that handle personal data.

What Is the Data Protection Act (DPA)? 

The Data Protection Act (DPA) is a legal framework in the United Kingdom that governs the processing of personal data. The most recent version, the Data Protection Act 2018, aligns the UK’s data protection laws with GDPR. 

The DPA sets out obligations for data controllers and processors, ensuring that personal data is managed lawfully, transparently, and fairly. It outlines principles for data processing, including data minimization, purpose limitation, and data accuracy, to protect individuals’ privacy rights.

The DPA also introduces specific provisions to address areas not fully covered by GDPR, such as data processing for national security and law enforcement purposes. The Act establishes the Information Commissioner’s Office (ICO) as the UK’s regulatory authority for data protection. The ICO is responsible for monitoring compliance, investigating breaches, and enforcing the law, including issuing fines and taking corrective actions.

What Is the Privacy and Electronic Communication Regulations (PECR) and How Is It Related to GDPR and DPA? 

The Privacy and Electronic Communications Regulations (PECR) is a UK law that governs the use of electronic communications and focuses on protecting the privacy of individuals in this context. Introduced in 2003, PECR regulates areas such as unsolicited marketing communications, the use of cookies and similar technologies, and the security of electronic communications. 

While PECR primarily focuses on privacy in electronic communications, it complements broader data protection laws like GDPR and the Data Protection Act. PECR and GDPR overlap in certain areas, particularly in terms of consent requirements. For example, both regulations require organizations to obtain clear and informed consent before sending direct marketing emails or using non-essential cookies. 

GDPR’s stricter consent rules have influenced PECR enforcement, requiring more explicit consent mechanisms for processing personal data in electronic communications. As a result, organizations must ensure compliance with both sets of regulations when conducting digital marketing activities.

While PECR is a separate law from GDPR and the DPA, the Information Commissioner’s Office (ICO) oversees its enforcement. The ICO can issue fines and take enforcement actions for PECR violations, as with GDPR and the DPA.

Tips from the expert

Steve Moore is Vice President and Chief Security Strategist at Exabeam, helping drive solutions for threat detection and advising customers on security programs and breach response. He is the host of the “The New CISO Podcast,” a Forbes Tech Council member, and Co-founder of TEN18 at Exabeam.

In my experience, here are tips that can help you better adapt to GDPR and DPA compliance:

Prioritize data pseudonymization over encryption: While encryption is a widely recommended practice, pseudonymization can offer more flexibility under both GDPR and DPA, allowing organizations to process personal data while reducing the risk of direct identification in case of a breach.

Implement a robust Subject Access Request (SAR) process: GDPR and DPA give individuals the right to access their personal data, so prepare for the potential surge in SARs by streamlining workflows. Automate SAR processes where possible and have a dedicated team for rapid response to avoid fines for delayed responses.

Leverage Data Protection Impact Assessments (DPIA) beyond the requirements: DPIAs are mandatory for high-risk processing under GDPR, but conducting them for all major processing activities can proactively identify data risks and improve compliance with both regulations, especially when launching new products or services.

Prepare for cross-border data transfers post-Brexit: For organizations operating between the EU and UK, ensure robust mechanisms like Standard Contractual Clauses (SCCs) or Binding Corporate Rules (BCRs) are in place, as data transfers post-Brexit require more stringent oversight.

Utilize a privacy-first approach in marketing strategies: With PECR working alongside GDPR and DPA, marketing departments should be involved in privacy by design initiatives. Make sure marketing campaigns align with strict opt-in consent and transparent data practices to avoid penalties for non-compliance with direct marketing rules.

GDPR vs DPA: The Key Differences 

1. Jurisdiction

GDPR applies to all member states within the European Union, as well as any organization outside the EU that processes the personal data of EU residents. This extraterritorial scope means that non-EU companies must comply with GDPR if they handle EU citizens’ data. In contrast, the Data Protection Act (DPA) primarily governs data processing activities within the UK. Although DPA aligns with GDPR principles, it includes specific provisions tailored to the UK’s legislative context, especially concerning national security and law enforcement.

While GDPR aims for uniform data protection regulations across the EU, the DPA focuses on incorporating these principles into the UK’s legal framework. Post-Brexit, the UK applies its version of GDPR, known as the UK GDPR, alongside the DPA 2018. Organizations that operate both in the EU and the UK must navigate compliance with both GDPR and DPA regulations, considering their specific jurisdictional requirements.

2. Scope and Coverage

While both GDPR and DPA aim to protect personal data, the DPA incorporates additional layers and exceptions that reflect the legal and societal needs of the UK.

GDPR has a broad scope, applying to any organization that processes personal data of EU residents, regardless of where the organization is based. This includes data controllers and data processors handling data in various capacities, from marketing and customer relations to data analytics. GDPR’s coverage ensures that individuals’ privacy rights are protected across different contexts and industries. The regulation introduces concepts like ‘data protection by design and by default,’ emphasizing proactive measures to safeguard personal data from the outset.

In contrast, the DPA’s scope is specific to the UK context, addressing particular areas such as national security, defense, and law enforcement, where GDPR provisions may not fully apply. The DPA also includes exemptions for certain types of data processing, like journalism, research, and archiving, provided they meet specific criteria. 

3. Regulatory Authority

Under GDPR, each EU member state has a designated Data Protection Authority (DPA) responsible for enforcing compliance and addressing data protection issues within its jurisdiction. These authorities collaborate through the European Data Protection Board (EDPB) to ensure consistent application of GDPR across the EU. The EDPB issues guidelines, resolves disputes, and provides a unified approach to data protection enforcement.

In the UK, the Information Commissioner’s Office (ICO) serves as the regulatory authority for data protection, overseeing compliance with the Data Protection Act (DPA) and UK GDPR. The ICO has the power to investigate data breaches, issue fines, and provide guidance on data protection practices. The ICO also plays a role in educating organizations and individuals about their rights and responsibilities under data protection laws. Post-Brexit, the ICO continues to coordinate with European DPAs to ensure cross-border data protection issues are addressed.

4. Fines and Penalties

One of the aspects of GDPR is its fines and penalties for non-compliance. Organizations can face penalties of up to €20 million or 4% of their global annual turnover, whichever is higher. These fines are intended to serve as a deterrent against data breaches and non-compliance, compelling organizations to adopt data protection practices.

Similarly, the Data Protection Act (DPA) 2018 in the UK imposes fines for non-compliance, with penalties reaching up to £17.5 million or 4% of global annual turnover. The ICO has the authority to issue these fines and take enforcement actions against organizations that fail to meet their data protection obligations. Like GDPR, the DPA’s penalties are designed to encourage data protection measures and ensure that individuals’ privacy rights are respected.

5. Data Processing Conditions

GDPR sets out conditions under which personal data can be lawfully processed. These conditions include obtaining explicit consent from the data subject, processing data for the performance of a contract, compliance with a legal obligation, protection of vital interests, performance of a task carried out in the public interest, and legitimate interests pursued by the data controller. GDPR also introduces special categories of data, such as health information, which require additional safeguards and justifications for processing.

The Data Protection Act (DPA) aligns with these principles but includes specific provisions for certain types of data processing unique to the UK context. For example, the DPA addresses data processing for national security, defense, and law enforcement purposes, providing guidelines and exemptions. The DPA also outlines conditions for processing special category data and criminal offense data, ensuring that these activities are conducted lawfully and transparently.

6. Data Breach Notifications

GDPR mandates that organizations report data breaches to the relevant supervisory authority within 72 hours of becoming aware of the incident. If the breach poses a high risk to individuals’ rights and freedoms, organizations must also notify affected individuals without undue delay. This requirement is designed to ensure prompt action and mitigate the potential harm caused by data breaches.

Similarly, the Data Protection Act (DPA) in the UK requires organizations to report data breaches to the Information Commissioner’s Office (ICO) within 72 hours. The DPA also outlines criteria for notifying individuals affected by the breach, ensuring that they are informed and can take measures to protect their data.

7. Legal Purposes and Exemptions

Both GDPR and the Data Protection Act (DPA) include provisions for processing data for legal purposes and outline specific exemptions. GDPR allows data processing under legal obligations, tasks in the public interest, and legitimate interests pursued by the controller, provided that these interests do not override individuals’ rights and freedoms. GDPR also includes exemptions for specific scenarios like journalism, research, and archiving, provided that safeguards are in place.

The DPA incorporates similar principles but includes additional exemptions relevant to the UK context. These exemptions cover areas such as national security, immigration, and law enforcement, where different rules may apply. The DPA provides guidelines on processing data for special purposes, including academic research and journalistic activities, ensuring that these activities are conducted responsibly and ethically.

Best Practices for Ensuring Compliance with Both Regulations 

Here are some of the ways that organizations can ensure they comply with both the GDPR and the DPA.

Data Mapping and Inventory

Data mapping involves identifying what personal data an organization collects, where it is stored, how it is processed, and who has access to it. This process helps organizations gain a clear understanding of their data flows, enabling them to assess potential risks and ensure that data handling complies with legal requirements. 

By maintaining an accurate data inventory, organizations can more easily demonstrate compliance in the event of an audit or investigation by regulators. Data mapping also supports the identification of data retention policies, helping organizations avoid keeping personal data longer than necessary. This supports compliance with the principle of data minimization under both GDPR and the DPA. 

Lawful Basis for Processing

Both GDPR and the DPA require organizations to establish a lawful basis for processing personal data. The six lawful bases outlined by GDPR include consent, contract performance, legal obligation, vital interests, public tasks, and legitimate interests. Organizations must clearly document the lawful basis they rely on and ensure it applies to their data processing context.

When relying on consent as a lawful basis, organizations must ensure that consent is freely given, specific, informed, and unambiguous. Additionally, consent must be easy to withdraw at any time. For other lawful bases, such as legitimate interests, organizations need to conduct a balancing test to ensure their interests do not override the rights and freedoms of data subjects. 

Data Minimization

Both the GDPR and Data Protection Act require organizations to collect only the personal data necessary for a given purpose. This means organizations should evaluate and limit the amount and type of data they gather, ensuring that they avoid collecting excessive information. 

By minimizing data collection, companies reduce the risk of data breaches. Implementing data minimization requires regular audits of data processing activities to determine if the personal data collected is relevant and up to date. Unused or outdated data should be securely deleted or anonymized. 

Transparency and Privacy Notices

Privacy notices help fulfill the obligation for transparency by clearly explaining the purposes of data processing, the lawful basis for processing, and the rights of individuals regarding their data. These notices must be written in clear, plain language and provided at the time of data collection.

Organizations should ensure that privacy notices are easily accessible and regularly updated to reflect changes in data processing activities. This includes informing individuals of any third parties that data may be shared with and explaining how long their data will be retained. Transparency also builds trust with customers by demonstrating that their data is handled responsibly.

Third-Party Vendor Management

Managing third-party vendors is critical to maintaining compliance with GDPR and the DPA, particularly when these vendors handle personal data on behalf of an organization. Companies must ensure that third parties processing data adhere to the same data protection standards they do. 

This involves conducting due diligence on vendors before entering into agreements and establishing data processing contracts that define the responsibilities of each party, including security measures and compliance obligations. To minimize risk, organizations should implement regular monitoring and audits of third-party vendors to ensure ongoing compliance. 

Employee Training and Awareness

Since employees play a role in handling personal data, organizations must ensure that staff are well-versed in GDPR and DPA requirements. Regular training programs should be implemented to educate employees on data protection principles, including data minimization, lawful processing, and security practices. This helps to reduce the likelihood of human error.

Training should be tailored to different roles within the organization, ensuring that employees understand their responsibilities regarding data protection. Additionally, raising awareness about data breach response procedures and the importance of reporting incidents promptly can help mitigate the impact of breaches. 

GDPR Compliance with Exabeam

Exabeam helps organizations meet both the technological and operational requirements of GDPR including:

• External Threat Reduction: Exabeam works alongside existing security solutions, using machine learning and behavioral analytics to identify unusual activity that may be indicative of an adversary’s attempt to find and access data. Exabeam threat timelines combine events from anomalies and correlation rules to group events by user or device. 
• Internal Threat Reduction: Exabeam works alongside identity and access management solutions to prevent security incidents resulting from the accidental or malicious abuse of allocated permissions. By flagging activity that falls outside the norm for a given user, Exabeam helps to detect potential incidents that could lead to data theft. Ideal log sources mapped to use cases and the MITRE ATT&CK^Ⓡ framework show which tools in the security arsenal can combine to show the clearest picture of events.

Visualization and Dashboards: Exabeam offers clear compliance-based GDPR Dashboards for easy download, export, or emailing regularly in support of GDPR mandates and the needs of the data privacy officer.