Is your software GDPR compliant? Is that the right question?

I hear this question being asked more and more  of vendors and of us analysts, whether a vendor’s software is GDPR compliant. However, it is the wrong question. The correct question is: “Does the software allow my organization to fulfill the regulatory requirements of EU GDPR?”. Even for cloud services, this (as “Does the service allow…”) is the main question, unless PII is processed by the cloud service.

If an enterprise implements a software package, it still has the requirement for complying with EU GDPR. It is the data controller. If it uses a cloud service, much of this is tenant responsibility. However, the role of the data processor – the one processing the data, ordered by the data controllers – is broader than ever before. Even someone that provides “only” storage that is used for storing PII is a data processor in the context of EU GDPR.

An interesting facet of this discussion is the “Privacy by Design” requirement of EU GDPR. Software (and services) used for handling PII must follow the principle of privacy by design. Thus, a data controller must choose software (or services) that follow these principles. One might argue that he also could choose an underlying software or service without support for privacy by design (whatever this is specifically) and configure or customize it so that it meets these requirements. The open question is whether a software or service must support privacy by design out-of-the-box and thus in consequence all EU GDPR requirements that apply to what the software does or whether it is sufficient that a software can be configured or customized to do so. But as my colleague Dave Kearns states: “The whole point of the ‘privacy by design’ is that it is in the product from the beginning, not added on later.

That is interesting when looking again at the initial question. One answer might be that all features required to fulfill the regulatory requirements of EU GDPR must be built into software and services that are used for handling PII data in the scope of EU GDPR. The other might be that it is sufficient if the software or service can be configured or customized to do so.

In essence, the question – when choosing software and services – is whether they support the EU GDPR requirements, starting from the abstract privacy-by-design principles to the concrete requirements of handling consent per purpose and many of the other requirements. It is not about software being compliant with EU GDPR, but about providing the support required for an organization to fulfill the requirements of EU GDPR. Looking at these requirements, there is a lot to do in many areas of software and services.

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