With an ever-growing public awareness of the implications of data privacy (or rather, lack of data privacy), increased emphasis on best data practices is likely to influence mergers and acquisitions (M&A) in 2018 and beyond. Different jurisdictions have opted for varying kinds of regulations, each of which may affect transactions in unique ways. In particular, the European Union (EU) is preparing to implement new, strengthened data privacy regulations in 2018.
Looking ahead, the EU is now poised to implement the General Data Protection Regulation (GDPR). Implementation is expected to occur on May 25, 2018. The GDPR purports to regulate the personal data of EU citizens. In the M&A sphere, data privacy due diligence will become even more critical, as acquirers must evaluate how the target company collects, stores, uses, and transfers personal data.
What can acquirers look for to evaluate the target company’s data practices?
During its due diligence, an acquirer should consider whether there is or has been:
- Complete disclosure and understanding of the movement of the target’s data between different locations, including different jurisdictions which may have different laws;
- Privacy by design, meaning an approach to design that considers and integrates privacy at all stages of the design process;
- Maintenance of a comprehensive and up-to-date data security strategy to responsibly manage and protect the personal data collected by the target; and
- Risk assessments by the target regarding the risks posed by collection, storage, use, and transfer of personal data.
With five months remaining to prepare for the GDPR, now is a critical time for companies anticipating M&A activity involving the EU to brush up on their new legal obligations, and for all potential acquirers or targets to carefully consider their data privacy practices and ensure compliance with applicable data privacy regulations.
The author would like to thank Kassandra Shortt, Articling Student, for her assistance in preparing this legal update.
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