The European Union’s General Data Protection Regulation (the GDPR) took effect just about a half-year ago, but many small and mid-sized companies in New York, and elsewhere across the country, still may not understand whether the GDPR applies to them and, therefore, whether they must comply with its requirements. Fortunately, it now may be somewhat easier to determine whether a company operating in New York that has a website and that collects data online is subject to the GDPR. That’s because the European Data Protection Board (EDPB) has just adopted guidelines on the territorial scope of the GDPR as determined by Article 3 of the GDPR.

The GDPR seeks to protect the privacy and security of personal data of EU residents, but it can apply to companies outside the EU’s territorial limits. It is intended to apply to businesses that are located outside the EU but that have subsidiaries in the EU, provide goods or services to individuals in the EU, or are in the business of collecting or using personal data concerning an EU resident. If a business meets one of these three tests, and is engaged in collecting, using, storing, deleting, or otherwise using the data (known as a processor), or is directing a third party in that activity (a controller), the GDPR may apply. It does not matter whether the business received the data through its website, social media, or even on paper that is later entered into an electronic file, as the GDPR is “technology neutral,” as indicated in Recital 15 of the GDPR.

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