The European Data Protection Board has good news for companies with websites that are not located in the European Union. It also has provided detailed guidelines to let companies located outside Europe know when they might be subject to the General Data Protection Regulation. As you know by now, the GDPR has some specific requirements about protecting the data of Europeans that carry some hefty penalties if they’re not followed.
The good news for companies based outside of the EU is that simply having a website that can be viewed by citizens of the EU does not make you subject to the GDPR. The guidelines spell that out specifically in a discussion of what constitutes being established in the EU. If a company is established in the EU in some way, they’re subject to the GDPR, at least in regard to protection of the data of European citizens.
The other good news is that simply selling something to a European citizen, whether it’s online or otherwise, also doesn’t automatically make your company subject to the GDPR, but here you have to be careful. While the guidelines make it clear that occasional interactions with someone in the EU, and the occasional processing of their data, don’t trigger a need to comply with the GDPR, what constitutes “occasional” isn’t spelled out.
What is spelled out is that you can’t be specifically selling to people in the EU. This means, among other things, that you can’t be offering items for sale priced in Euros and you can’t be presenting your website in a European language that’s not spoken in your country.
The language requirement is kind of tricky, because there are hundreds of languages spoken in the U.S. in one place or another, but in reality, only a few are widely spoken. For example, a U.S. website could easily have a Spanish version without raising suspicions or attempting to do business in the EU. A Canadian website could have a French version (which is apparently required by law in Canada), but having the option of German or Greek versions might make it look like you’re marketing to the EU.
The EU regulations applying to the offering of goods and services in Europe don’t mean that you have to be selling stuff. Offering free services is included. What matters is whether you’re offering those goods or services to people in the EU. Also note that “people in the EU” does not mean citizens of the EU, but anyone who is in the EU at the time of the offer, with a few limited exclusions.
Those exclusions apply to someone from another country who happens to be in the EU at the time of a transaction, and they’re doing business with a non-EU company in a transaction that doesn’t involve the EU. The example the EDPB gives is a citizen of the U.S. who orders the electronic delivery of a U.S. newspaper.
Data Controller or Data Processor? There’s a Difference
But suppose you want to sell stuff to people in the EU? If your organization isn’t in the EU and the data you’re handling as a result of the transactions isn’t being processed in the EU, you’re still subject to the GDPR for European transactions, and you have to follow those rules when you handle that data.
Note that there’s a difference between being the data controller, which is what you’re doing if you’re receiving orders and performing the initial handling of any personal information, and being the data processor, which means further handling of data, including using it for marketing or other uses.
In addition to protecting the data of people in the EU according to the GDPR, you also have to have a representative in the EU. This is similar to having a registered agent in the U.S., and like having a registered agent, this representative can be a law firm, consultant or other organization that you hire to represent you in a country where you do business. These firms that will be your representative also offer a number of other services aimed at helping you comply with the GDPR.
One of those companies, Data Protection Representatives, even has a handy Q&A to help you determine whether the GDPR applies to your company. The price for hiring one of these firms varies, and it depends on the services you need, but basic representation seems to start at about €500 annually.
What this means to you is that you don’t have to go through the process of trying to figure out whether a visitor to your website is based in Europe elsewhere and then taking action to prevent their having access. This happened frequently in May right after the GDPR took effect, but it’s unnecessary. You also don’t need to refuse to sell products to someone from Europe, as long as it’s occasional, you’re not pricing the sale in euros, and you’re not customizing your website for use in Europe.
What’s also useful is that there’s a clear way to do business with people in the EU without having to establish an office there. You can market to Europeans all you want as long as you protect their information according to the rules and have an agent to represent you in Europe.
While the requirements of the GDPR are strict, they’re not unreasonable, and they’re not a great mystery. Just do your homework before you start doing business in Europe and find a good partner to help you.
