The slow progress of GDPR has been agonising. From the beginning, with a series of disputed drafts bouncing around European institutions, we’ve had the fraught last minute negotiations in December 2015, the clouds of doubt cast by the Brexit vote, and finally, through a series of government announcements, apparent confirmation that it was still on track. We’re not there yet – the much-discussed position paper released by the Department for Culture Media and Sport this week is still just the hors d’oeuvres, with the full meal only beginning next month, when the Data Protection Bill itself will be published.
Throughout this seemingly endless grind, there has been one consistent thread, one thing on which the weary GDPR traveller could rely, no matter how much doubt there was elsewhere: the constant stream of bullshit. Everywhere you look, on whatever subject you choose to read about, bullshit everywhere. There is the nonsense about having to have consent, spread by parties as varied as the admirable Rights Info (since corrected) and the GDPR Conference, who sponsored an article about the oncoming Data Protection Apocalypse and then had to withdraw it because it was bollocks. There is the relentless scaremongering about fines that will turn companies into dust, spread by the world and his dog and finally punctured by the Information Commissioner herself, admitting that she would far rather not fine anyone if that’s all the same to you. I’m not certain that waving the white flag this early is the masterstroke that Wilmslow thinks it is, but at least they’ve finally caught up to where I was in April.
Hype is one thing. If I was still a Data Protection Officer, up until today I probably would have shamelessly exploited the bazillion pound fine nonsense if I thought it would persuade my employer to take the changes seriously. Being a DPO is the ultimate thankless task where nobody notices you until somebody else does something stupid and you get the blame, so if the threat of fire and fury gets the chief executive’s attention, it’s nobody else’s business. However, there’s a difference between selling internally, and just plain selling.
As has already been noted by experts more distinguished and less biased than me, there are a lot of new entrants into the market whose experience lies outside the conventional route of Actually Working On Data Protection Ever. This does not stop them from making grand claims. The idea that Carl Gottlieb’s customers already call him ‘The GDPR Guy’ definitely doesn’t sound made up, but it must be confusing for all the people who presumably called him the Anti Virus Guy a few months ago.
If you prefer, perhaps you might try Get Data Protected Reliably Ltd, whose website boldly describes it as “the UK’s leading GDPR Consultancy“, which for a company that was only incorporated three weeks ago is quite an achievement. The owner confirmed to me that he doesn’t have any Data Protection experience, but he is in the process of hiring people who do, so that’s something to look forward to.
You could try GDPR Training (established 25th April, so more than double the experience of Get Data Protected Reliably), and run by the husband and wife team of Emma Green (former IT consultant) and John Green (former Legal Costs Draftsman). The Greens were upset about the fact that people tweeted facts that were in the public domain about them and made some threats about libel, which is odd given that John accused a highly respected DP expert of jumping on the GDPR bandwagon before blocking everyone on Twitter who noticed. Given that they use the same P.O. Box in Wilmslow that I do, at least they won’t have to go far if they want to take issue with this blog.
More pernicious is the sudden rise of the GDPR Certified Practitioner / DPO / Professional. Now here, I have to declare an interest. One of the training courses I run is a four day course with an exam and a project at the end. If you pass both elements of the course, you get a certificate. It’s a practical course designed to get people ready for GDPR (its predecessor did the same for the DPA). Nobody is ‘qualified’ to be a GDPR Data Protection Officer because they complete the course – no course can qualify you for a job that doesn’t really exist yet. Nobody who completes it is ‘GDPR certified’ as a result, because certification in the GDPR context has a very specific meaning that makes such a claim impossible.
To be certified under the GDPR, data processing has to be approved by an accredited certification body. To be an accredited certification body, an organisation has to be approved by the appropriate national body – in the UK, DCMS has announced that the Information Commissioner’s Office and the UK Accreditation Service will carry out this role, but they aren’t doing it yet. Given that Article 42 refers to the certification of “processing operations by controllers and processors“, the mechanism for certifying a product like a training course is unclear. The other important element here is that certification is voluntary. The elements of GDPR that certification applies to do not require it – the organisation is at liberty to find other ways to prove their compliance, which is what many will do.
A GDPR certification may be very useful – a controller or processor can use certification to demonstrate their compliance (a requirement of Article 24), and can also have their DP by design approach certified. It’s obviously appealing to data processors or controllers who are bidding to provide services – the certified cloud provider will undoubtedly be more attractive than the one who is not. But whether many Data Controllers will take it up is an open question – whether a company is certified will make zero difference to consumers.
And we’re not there now, which is why claims about being a ‘Certified’ DPO should be taken with a big pinch of salt. If you say you’re certified, that claim should be very carefully interrogated. If, for example, you mean ‘I have successfully completed an course with an exam and I got a certificate at the end of it’, fair enough. But is that what most people will think when they see you describe yourself as a ‘Certified DPO Practitioner‘? Will anyone think you’ve just been on a training course (however good that course might be), especially if your company website says the following:
- GDPR Practitioners – As certified practitioners we can assist you through the new data law minefield.
- Data Protection Officers – We are qualified to act as outsourced DPOs to consult on data protection issues.
In the GDPR world, ‘certified’ is a big word; ‘certificated’ is a much more accurate one, but it doesn’t have the same heft. The question is, why not use the right word? All of these courses – including mine – are certificated – there’s a test at the end, and you get a certificate. Claiming to be ‘GDPR certified’ sounds like a process that hasn’t started yet.
Some training companies do have external accreditation of their courses, so when they say that they are offering a “Certified EU General Data Protection Regulation (GDPR) Training Course”, surely that is worth more? IT Governance, for example, offer a range of Certified GDPR courses that have been accredited by the International Board for IT Governance Qualifications, which is obviously different because the IBITGQ is an external body whose training and examination committees are staffed by “industry experts”. The IBITGQ currently only accredits one organisation (IT Governance) and though they are open to accrediting other organisations, they refuse to take anyone else from the United Kingdom.
The names of the ‘industry experts’ aren’t available on the IBITGQ website, so I asked IT Governance who the “industry experts” on the IBITGQ committees were, but they refused to tell me and told me to ask the IBITGQ itself. I asked them, but they didn’t acknowledge my email. Meanwhile, people who have been the IT Governance courses are describing themselves as ‘GDPR Certified Practitioners’, and I’m not sure what that means. The IBITGQ may be doing a sterling job, but the accreditation they offer to a single training company has nothing to do with GDPR certification. They are not accredited in the UK to offer GDPR certification, because no-one is.
I’m not saying that IT Governance want to create any confusion, I don’t know anyone who has actually done the course, and I have no idea what it is like. Nevertheless, no-one should be using the word ‘Certified’ in a GDPR context until the certification process actually starts. It is impossible to have a GDPR certification at the moment, and anyone who has completed or delivered any kind of training on the subject knows this better than most.
The idea of a GDPR seal (also encouraged in Article 42) will be revolutionary in the training business – once courses or organisations can have a GDPR kite mark, it will be difficult to trade without one. I don’t know whether to look forward to the dawn of the DP seal or not, but it’s coming and I will have to get used to it. In the meantime, it’s important that everyone who is buying training or consultancy looks at the bona fides of the provider. Anyone with ‘GDPR’ in their name probably doesn’t have a long history of Data Protection experience, and given that GDPR is evolutionary not revolutionary, that’s a problem. Anyone with a predominantly IT security background is an expert in one part of the GDPR, not the whole of it. And anyone who describes themselves as ‘Certified’ should be asked plainly and simply: beyond getting a certificate, what does that mean?