Only 10 more weeks to go before the GDPR becomes fully effective. Preparing your company for the application of this new regulation requires a correct understanding of its principles. Each week, we highlight one particular misconception regarding the interpretation of the GDPR.
Does the GDPR apply to any organization controlling or processing data of an EU resident?
Although the territorial scope of application of the GDPR is defined rather broadly, it does not apply to any organization controlling or processing data of an EU resident. In fact, Article 3 of the GDPR lays down several criteria or connecting factors for its application.
Firstly, if a controller or a processor has an establishment in the EU whose activities include the processing of personal data, then the GDPR applies to that controller or processor. This is irrespective of whether the actual data processing takes place in the EU or not.
Secondly, if the controller or processor is not established in the EU but processes personal data of data subjects who are in the EU (i.e., also data subjects who are non-EU residents but find themselves in the EU), then the GDPR applies to that controller or processor if it offers goods or services to those data subjects in the EU, whether in return for payment or not, or if it monitors data subjects’ behaviour taking place within the EU.
Thirdly, the GDPR also applies to personal data processing by a controller who is not established in the EU but in a place where Member State law applies by virtue of public international law, such as in a Member State's diplomatic mission or consular post outside the EU.
Stibbe, together with Chiomenti, Cuatrecasas, GIDE and Gleiss Lutz, have gathered this useful information, reflecting some common misconceptions about the implementation of the GDPR.