This content is not intended to constitute legal advice. Specific legal advice should be sought before taking or refraining from taking any action in relation to the matters outlined.
*Updated since first publication with additional resource from the ICO+++, main content remains unchanged.*
The General Data Protection Regulations (GDPR) do not mandate the use of encryption. In fact, the word “encryption” only appears four times in the entirety of the 88 pages of the GDPR. On each occasion, it is used in a very similar context. See GDPR Article 32 (below) as an example.
However, the GDPR does propose a risk-based approach to compliance. Each organisation will need to document their approach to compliance. If an organisation chooses not to use encryption then they would need to demonstrate what alternative mechanisms they plan to use to safeguard client personal data.
We receive a lot of questions from members of the need to securely communicate with clients.
In this case, using the Post Office is a useful analogy. Most people are happy to entrust a simple letter to the Post Office for safe delivery. However, if we wish to send a valuable item in the post we may choose to send the item via recorded delivery. In this case, we have evaluated the risk (of losing the contents of the letter) and have taken additional precautions.
If you do choose to implement appropriate technical and organisational measures to protect personal data then what are the next steps. There are a number of ways in which personal data can be protected.
One of the principal aims of the GDPR is to be accountable as to how data is collected, used and processed. By taking a risk-based approach and documenting how personal data is being used and processed then an organisation will be able to demonstrate their approach to data protection if the needed arises.
For clarity, the GDPR article 32 is reproduced below in its entirety.
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk, including inter alia as appropriate:
(a) the pseudonymisation and encryption of personal data;
(b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;
(c) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident;
[+++ Added 12/03/18] Existing ICO guidance of encryption (PDF) can be found here.
Existing ICO guidance under the Data Protection Act: A practical guide to IT security: ideal for the small business
The ICO has launched new small business GDPR helpline in October 2017, which may prove useful.