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Legal/Regulatory

The GDPR and US Companies

The EU's cyber regs will impact U.S. companies that handle the data of EU customers.
By: | July 17, 2017 • 4 min read

The final countdown is on for U.S. companies to meet a new set of data privacy rules or face heavy fines.

The General Data Protection Regulation, GDPR, which kicks in on May 25, 2018, will be implemented by the European Union, but it also touches companies from other countries, including the United States, that access data from EU-based users.

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According to experts, the GDPR brings challenges to U.S. companies as its approach to data privacy is considerably different from the view taken by American legislation.

Umair Javed, an associate in the Washington, D.C. office of Wiley Rein, pointed out that European governments put a strong focus on the rights of individuals to have their privacy protected, which includes the right to request that data collected by companies is erased from their databases.

In the U.S., however, the emphasis skews toward freedom of speech, and authorities have adopted a looser approach to the monetization of consumer data by companies.

“It could all mean a balancing act for U.S. companies,” Javed said.

The GDPR has significantly expanded the definition of personal data. — Matthew McCabe, U.S. Critical Infrastructure Cyber Leader, Marsh

The GDPR mandates that firms which collect or process data from EU-based users report any breaches in a timely manner and establish a Data Privacy Officer charged with making sure that the organization complies with the rules.

Experts said that the DPO function can be assigned to a dedicated manager, added to the responsibilities of a risk manager, data security officer or other function within the company, or delegated to a third party, depending on the size of the organization and the volume of data it processes.

The GDPR applies not only to companies who are based or have offices in a member of the European Union, but also to those that are headquartered elsewhere, but have access to data from EU-based customers, suppliers or business partners.

Matthew McCabe, US Critical Infrastructure Cyber Leader at Marsh

According to Javed, the application of the law takes into account mostly the location where the data is collected, rather than the place of origin of the company that collected or processed the data.

The new rules also considerably broaden the scope of user information whose privacy must be protected by companies. Data to be encompassed by the GDPR includes personal banking information, biometric data, geo-location data from mobile phones, medical information and several other data categories.

Under the new regulations, a company that is based in the U.S. could be fined by an EU government for a breach of the GDPR even if, for example, it does not have an office in the EU, but sells goods via a website that is accessible in Europe, and where there is an option to pay in Euros or British Pounds.

“The GDPR has significantly expanded the definition of personal data,” said Matthew McCabe, U.S. Critical Infrastructure Cyber Leader at Marsh.

Failure to meet GDPR requirements may result in fines of up to $23 million or 4 percent of a company’s annual worldwide turnover. Consult Hyperion estimates that European banks alone could be hit with $5.4 billion in fines in the first three years after the implementation of the directive, with penalties approaching $300 million per breach.

In a global survey released in April by Veritas, one out of every five companies expressed fears that GDPR fines could put them out of business.

Considering the stakes involved, it should not come as a surprise that many companies have started to prepare themselves in anticipation of the arrival of GDPR. According to a survey released in January by PwC, 92 percent of U.S. organizations interviewed deemed GDPR compliance a top priority in 2017. Three out of four planned to spend $1 million or more in the process.

Michael Born, a vice president at the Global Technology and Privacy Practice at Lockton, said that many companies are not there yet, and could be caught shorthanded by the May 2018 deadline.

In any case, the arrival of GDPR should provide a further boost to demand for cyber insurance, as many such policies are designed to cover the liabilities created by the new regulation.

“Coverages included in cyber policies are designed to cover the kinds of exposures created by the GDPR,” Born said.

“But buyers must make sure that wordings are broad enough to cover not only GDPR exposures, but also those created by data privacy legislation in the U.S. and elsewhere.”

“The data breach response and notification requirements imply a very mature role to be played by cyber insurance,” McCabe said.

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“Cyber insurance can also work as a point of assessment of how companies are complying with the GDPR, and the insurance market can also provide expert advice to companies. The big question will be whether fines and punishment issued by the authorities under the GDPR will be insurable.”

“If a global company gets a maximum fine, they will not have enough cyber insurance to cover it,” Born added.

“Should companies be considering buying enough cyber insurance to cover a 4 percent annual turnover fine?  I do not think that is appropriate to all the companies that might be subject to it. A lot of companies may adopt a wait-and-see attitude to check what the regulatory bodies actually do when it comes to issuing fines and penalties for violations before they make a final deliberation.”

Rodrigo Amaral is a freelance writer specializing in Latin American and European risk management and insurance markets. He can be reached at [email protected]

More from Risk & Insurance

More from Risk & Insurance

Risk Management

The Profession: Curt Gross

This director of risk management sees cyber, IP and reputation risks as evolving threats, but more formal education may make emerging risk professionals better prepared.
By: | June 1, 2018 • 4 min read

R&I: What was your first job?

My first non-professional job was working at Burger King in high school. I learned some valuable life lessons there.

R&I: How did you come to work in risk management?

After taking some accounting classes in high school, I originally thought I wanted to be an accountant. After working on a few Widgets Inc. projects in college, I figured out that wasn’t what I really wanted to do. Risk management found me. The rest is history. Looking back, I am pleased with how things worked out.

R&I: What is the risk management community doing right?

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I think we do a nice job on post graduate education. I think the ARM and CPCU designations give credibility to the profession. Plus, formal college risk management degrees are becoming more popular these days. I know The University of Akron just launched a new risk management bachelor’s program in the fall of 2017 within the business school.

R&I: What could the risk management community be doing a better job of?

I think we could do a better job with streamlining certificates of insurance or, better yet, evaluating if they are even necessary. It just seems to me that there is a significant amount of time and expense around generating certificates. There has to be a more efficient way.

R&I: What was the best location and year for the RIMS conference and why?

Selfishly, I prefer a destination with a direct flight when possible. RIMS does a nice job of selecting various locations throughout the country. It is a big job to successfully pull off a conference of that size.

Curt Gross, Director of Risk Management, Parker Hannifin Corp.

R&I: What’s been the biggest change in the risk management and insurance industry since you’ve been in it?

Definitely the change in nontraditional property & casualty exposures such as intellectual property and reputational risk. Those exposures existed way back when but in different ways. As computer networks become more and more connected and news travels at a more rapid pace, it just amplifies these types of exposures. Sometimes we have to think like the perpetrator, which can be difficult to do.

R&I: What emerging commercial risk most concerns you?

I hate to sound cliché — it’s quite the buzz these days — but I would have to say cyber. It’s such a complex risk involving nontraditional players and motives. Definitely a challenging exposure to get your arms around. Unfortunately, I don’t think we’ll really know the true exposure until there is more claim development.

R&I: What insurance carrier do you have the highest opinion of?

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Our captive insurance company. I’ve been fortunate to work for several companies with a captive, each one with a different operating objective. I view a captive as an essential tool for a successful risk management program.

R&I: Who is your mentor and why?

I can’t point to just one. I have and continue to be lucky to work for really good managers throughout my career. Each one has taken the time and interest to develop me as a professional. I certainly haven’t arrived yet and welcome feedback to continue to try to be the best I can be every day.

R&I: What have you accomplished that you are proudest of?

I would like to think I have and continue to bring meaningful value to my company. However, I would have to say my family is my proudest accomplishment.

R&I: What is your favorite book or movie?

Favorite movie is definitely “Good Will Hunting.”

R&I: What’s the best restaurant you’ve ever eaten at?

Tough question to narrow down. If my wife ran a restaurant, it would be hers. We try to have dinner as a family as much as possible. If I had to pick one restaurant though, I would say Fire Food & Drink in Cleveland, Ohio. Chef Katz is a culinary genius.

R&I: What is the most unusual/interesting place you have ever visited?

The Grand Canyon. It is just so vast. A close second is Stonehenge.

R&I: What is the riskiest activity you ever engaged in?

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A few, actually. Up until a few years ago, I owned a sport bike (motorcycle). Of course, I wore the proper gear, took a safety course and read a motorcycle safety book. Also, I have taken a few laps in a NASCAR [race car] around Daytona International Speedway at 180 mph. Most recently, trying to ride my daughter’s skateboard.

R&I: If the world has a modern hero, who is it and why?

The Dalai Lama. A world full of compassion, tolerance and patience and free of discrimination, racism and violence, while perhaps idealistic, sounds like a wonderful place to me.

R&I: What about this work do you find the most fulfilling or rewarding?

I really enjoy the company I work for and my role, because I get the opportunity to work with various functions. For example, while mostly finance, I get to interact with legal, human resources, employee health and safety, to name a few.

R&I: What do your friends and family think you do?

I asked my son. He said, “Risk management and insurance.” (He’s had the benefit of bring-your-kid-to-work day.)

Katie Dwyer is an associate editor at Risk & Insurance®. She can be reached at [email protected]