Skip to main content

A BUSKLAW Newsletter Aside: Is Your Website Compliant with the European Union's GDPR?

Effective 25 May 2018, the EU's General Data Protection Regulation goes into effect. The GDPR is a big deal and quite complicated. There are 99 articles and 173 recitals defining the privacy rights of individuals and data controllers’ and data processors’ obligations. 

Are you a U.S.-based data controller or data processor subject to the GDPR? You are a “data controller” if you, alone or jointly with others, determine the purpose and means of “processing” personal data of EU individual customers or businesses. The threshold is that you offer goods or services to customers or businesses in the EU (including the UK, despite Brexit) and collect their personal data. But even if you don’t sell goods or services to EU customers but engage in marketing or monitoring activities involving EU individuals’ personal data, you are covered by the GDPR. 

You are a data processor if you “process” personal data on behalf of a “data controller,” i.e., a data controller contracts with you to process personal data that the controller collects from individuals. “Process” or “processing” means any operation or set of operations that are performed on personal data or on sets of personal data, whether or not by automated means, such as data collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

Personal data includes one or more of the following: IP addresses, names, birth dates, physical addresses, email addresses, customer photos, billing information, customer identification numbers, any other information that can be used alone or with other data to identify a person, and sensitive data such as genetic data and biometric data that could be processed to uniquely identify an individual. 

Perhaps you're already in compliance with the GDPR. It's been in the works for the last two years. But if not, read on:  

For compliance purposes, you should consider giving priority to the following:

  • Updating your customer-facing websites and mobile app privacy policies to comply with the GDPR. These existing policies may be deficient in the following areas:
    • The customer doesn’t expressly consent to the privacy policy (and you don't keep a record of customer consents);
    • The privacy policy isn’t written in plain English;
    • The privacy policy doesn’t:
      • provide that the customer has the right to have inaccurate personal data rectified;
      • explain that the customer has the right to have their personal data deleted, i.e., the “right to be forgotten;”
      • explain that the customer has the right to receive their personal data;
      • explain that the customer has the right to object or restrict the processing of their data;
      • explain that the customer has the right to at any time revoke its consent to the processing of their data;
      • explain that the customer has the right to the secure storage and transfer of their data; and
      • explain that the customer has the right to have their outdated data erased.
  • If you are a data controller, make sure that you have suitable contracts with your data processors, and data processors should do the same with their data controllers. The GDPR includes specific content requirements for these contracts.
  • Making sure that you understand the cost of complying with the GDPR. Apart from legal fees, there will likely be considerable internal compliance costs, including (1) creating the necessary infrastructure to support the required website and mobile app privacy policy changes; (2) establishing more robust data security; and (3) adopting practiced and repeatable data breach notification policies and procedures. Even apart from GDPR compliance, if you haven't already done so, consider appointing a data protection or chief privacy officer (that role can be combined with another senior manager such as CFO or CIO) who reports directly your President or CEO.
  • If you have or process personal data, you should consider having Cyber Risk Liability insurance that may respond to penalties resulting from non-compliance with the GDPR. Cyber Risk policies have become more affordable in recent years, but you must carefully review the exclusions because fines or penalties levied by government authorities may be excluded from coverage. 
  • You should also consider having Directors and Officers Liability insurance because a company’s failure to properly secure personal data or timely report data breaches may lead to D&O liability to shareholders or outside parties. Again, you should carefully review the coverage exclusions.
Penalties for non-compliance with the GDPR are stiff: up to four percent of the violating data controller’s global annual revenue per violation or $20 million Euros – whichever is greater. Also, the data controller (and its data processor if any) may be prohibited from processing EU customers' personal data.

I've prepared questionnaires for data controllers and data processors to help determine if they are subject to the GDPR. If you would like a copy (at no charge), email me! 
If you find this post worthwhile, please consider sharing it with your colleagues. The link to this blog is and my website is And my email address is Thanks!


Popular posts from this blog

The BUSKLAW May Newsletter: Is There a Moral Imperative to Plain English? Part 1 - Examples

"The man in black fled across the desert, and the gunslinger followed." 

Thus begins Stephen King's epic story of the gunslinger, Roland Deschain, and the popular Dark Tower series of novels describing his adventures. But King didn't have to write this sentence that way; he could have consulted with the typical lawyer, politician, or company PR department first. Had he done so, the sentence may have appeared so:

"The bad hombre who was dressed mostly in dark clothing and running fast across an arid land was pursued by a multi-armed, extremely dangerous, and notorious vigilante."
The difference in these two sentences is clear. King's concise short sentence creates an image that grabs the reader's attention and raises provocative questions. Who is the man in black? Who is the gunslinger? Why is he after the man in black? But the Bizarro World Stephen King sentence - with its ethnic slur, passive voice, ambiguity, suppositions, and superfluous adjectives …

A BUSKLAW Newsletter Aside: Links to My Michigan Bar Journal Plain-Language Articles

Since my retirement from in-house corporate law in 2014, I've written or co-written several articles about using plain-language in contracts for the Michigan Bar Journal. And a new article has recently appeared in the October 2017 issue. But those articles haven't been a lone endeavor in any sense; I've had several plain-language experts give me their input along the way:
Plain English Scholar and WMU-Cooley Law School Distinguished Professor Emeritus Joe Kimblewho invited me to write for the Journal to begin with and has since freely given me editorial advice that not only benefits the particular article du jour but also helps my legal writing generally. And a hat tip to Journal Editor Linda Novak who has put, editorially-speaking, the "frosting on the cake" before publication of these articles. Michael Braem, J.D., Contract Manager of the Michigan State University College of Human Medicine, who has co-authored some of the articles with me. Michael has also becom…

The BUSKLAW November Newsletter: Dead Turkeys and Deader Tort Damages

November is the month of Thanksgiving. And Thanksgiving for most folks means time with family and friends (better yet, family who are friends), an appropriate but modestly-priced wine, and a turkey. Turkeys should live their brief sojourn on this earth in relative peace before winding up on our table. But that was not to be for the poor fowls in the recent Kent County (MI) Circuit Court case of White Acres, LLC et al v. Shur Green Farms, LLC et al

The case involves a plethora of parties (hence the "et al"), all of whom were in the distribution chain of a biofuel called Lascadoil. Unlike its parent product, Lasalocid, Lascadoil is not an appropriate turkey-feed additive. (Does anything with "oil" in its name sound fit for human or animal consumption?) So when a bunch of turkeys died after eating feed tainted with Lascadoil, the lawsuits started flying; each party was sued by its downstream buyer who in turn sued its upstream seller. And numerous insurance companies…