Category Archives: Data Protection

The Information Commissioner’s Powers of Entry and Inspection

Yesterday I wrote a blog post looking at data subject’s rights and lessons for controllers arising out of the Cambridge Analytica and Facebook privacy matter.  In that blog post I mentioned briefly about the Information Commissioner’s powers of entry and search after the Commissioner announced that she was seeking a warrant to enter and search Cambridge Analytica’s premises.   In this blog post I will look at the Commissioner’s powers of entry and search in a bit more detail.

As noted yesterday, the Commissioner’s powers of entry and search are contained in Schedule 9 to the Data Protection Act 1998.  Schedule 9 sets out the circumstances in which a judge can grant a warrant to the Information Commissioner.  The judge considering the application must be satisfied, based on statements made on oath, that the there are reasonable grounds of suspecting that (a) a data controller has contravened or is contravening any of the data protection principles, or (b) that an offence under the Data Protection Act has been or is being committed, and that evidence of the contravention or of the commission of the offence is to be found on any premises specified in the information supplied by the Commissioner.

The Commissioner is generally required, by the terms of Schedule 9 to the Data Protection Act 1998, to jump through some hoops before the judge considering the warrant application can grant the warrant to the Commissioner.  Paragraph 2 of Schedule 9 requires that the judge considering the application be satisfied of a number of other things:

  1. that the Commissioner has given seven days’ notice in writing to the occupier of the premises in question demanding access to the premises, and
  2. that either (i) access was demanded at a reasonable hour and was unreasonably refused, or (ii) although entry to the premises was granted, the occupier unreasonably refused to comply with a request by the Commissioner or any of the Commissioner’s officers or staff to permit the Commissioner or the officer or member of staff to do any of the things she would be entitled to do if she had a warrant (see below); and
  3. that the occupier, has, after the refusal, been notified by the Commissioner of the application for the warrant and has had an opportunity of being heard by the judge on the question whether or not it should be issued.

Where the judge is satisfied that the case is one of urgency or that compliance with those provisions would defeat the object of the entry, the judge does not need to be satisfied of the three things listed above.  In this case, given that the Commissioner announced her intention to apply for a warrant on national television, it is likely that a judge will require to be satisfied of the three conditions listed above.

Who considers an application by the Commissioner for a warrant depends upon the jurisdiction in which the warrant is being applied for.  In England and Wales a District Judge (Magistrates’ Court) or a Circuit Judge has the power to grant the warrant; in Scotland it is the Sheriff and in Northern Ireland it is a Country Court Judge.

A warrant granted under Schedule 9 of the Data Protection Act 1998 gives the Commissioner the power to do a number of things; these things can be found in paragraph 1(3) of the Schedule and are:

  1. to enter the premises
  2. to search the premises
  3. to inspect, examine, operate and test any equipment found on the premises which is used or intended to be used for the processing of personal data;
  4. to inspect and seize any relevant documents or other material found on the premises;
  5. to require any person on the premises to provide an explanation of any document or other material found on the premises;
  6. to require any person on the premises to provide such other information as may reasonably be required for the purpose of determining whether the data controller has contravened, or is contravening, the data protection principles.

The warrant must be executed at a reasonable hour, unless it appears to the person executing it that there are grounds for suspecting that the object of the warrant would be defeated if it were so executed, and within 7 days of the date of issue.  It allows the Commissioner, her officers and staff to use reasonable force to execute the warrant.

There are lots of other, really boring and technical requirements, which I won’t go into; the last thing I will mention is the terms of paragraph 12 of Schedule 9 which makes it an offence to: (i) intentionally obstruct a person in the execution of a warrant issued under Schedule 9; (ii) fail, without reasonable excuse, to give any person executing such a warrant such assistance as he may reasonably require for the execution of the warrant; (iii) makes a statement in response to a requirement  to provide information (see 5 and 6 in the list of powers the warrant gives the Commissioner) which that person knows to be false in a material respect; and (iv) recklessly makes a statement in response to such a requirement which is false in a material respect.

The Commissioner does get warrants from time to time; for example, earlier this month the ICO executed search warrants in relation to two properties in Greater Manchester as part of an investigation into companies suspected of sending text messages in contravention of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR).  The provisions of Schedule 9 to the Data Protection Act 1998 apply to PECR by virtue of Regulation 31 of PECR.

Alistair Sloan

If you are a data controller or an individual who is looking for advice and assistance with any aspect of data protection or privacy law, then you can contact Alistair Sloan on 0345 450 0123 or 0141 229 0880.  Alternatively, you can send him an E-mail.

Data Protection, Facebook and Cambridge Analytica

We know that the Information Commissioner is investigating the circumstances surrounding the obtaining of personal data of a considerable number of individuals by Cambridge Analytica.  Cambridge Analytica is a data analytics company that is in the midst of what can only be described as a data protection and privacy scandal.

There are a number of significant allegations being made against Cambridge Analytica about how it obtains and processes personal data.  The Information Commissioner has also revealed that Cambridge Analytica is not cooperating with her investigation to the extent that she is going to apply for a warrant to enter and search their premises.  This means that, in all probability, the Commissioner has already sought access and it has been refused.  Schedule 9 to Data Protection Act 1998 sets out the Information Commissioner’s powers of entry and inspection; it permits the Commissioner to obtain a warrant from the court where the court is satisfied that a data controller has contravened or is contravening any of the data protection principles, or that an offence under this Act has been or is being committed, and that evidence of the contravention or of the commission of the offence is to be found on any premises specified.

This story is moving at quite a pace and is constantly changing with new revelations coming to light; it’s also the subject of an investigation by the Information Commissioner and there is the possibility that the company might face prosecution for offences under Section 55 of the Data Protection Act 1998 depending upon what the Commissioner finds during the course of her investigation.  I am therefore going to try and keep this blog post broad and theoretical rather than trample upon the toes of a live regulatory investigation.

A data controller has a duty to comply with the data protection principles in relation to all of the personal data for which they are the controller, subject to certain specified exemptions set out in statute.  The First data protection principle requires that personal data be “processed fairly and lawfully”; this requires the data controller to meet one or more of the conditions set out in Schedule 2 to the Data Protection Act 1998 (and, in respect of sensitive personal data, a condition in Schedule 3 also requires to be satisfied).

What can individuals do if they are concerned about whether Cambridge Analytica has any personal data concerning them and what they’ve been doing with it?  Data Subjects have a number of rights under the Data Protection Act 1998 and the cornerstone of those rights is the right of subject access.  This is currently given effect to in section 7 of the Data Protection Act 1998 and is not simply about getting copies of the personal data being processed by a data controller:  it consists of a whole suite or rights, of which getting a copy of the personal data is only one aspect.  Under the current law, data controllers are entitled to charge a fee up to a prescribed maximum for dealing with such requests; a request of this nature would attract a fee of £10, but many individuals might well think that this is a price worth paying to know if and how they have been affected by this issue.  Data Controllers have up to 40 days in which to comply with a subject access request.  Some key changes to the right of subject access will come into effect on 25th May 2018, but for now the law contained within the Data Protection Act 1998 is still applicable.

Once you have the response to your subject access request your rights do not end there; once you’ve established what a data controller is processing about you, what they’re doing with it and where they got it from there are a number of other steps that you might be able to take, such as requiring them to cease processing your personal data, complaining to the Information Commissioner or making a claim for compensation.

For data controllers, what is currently unfolding should be seen as an important lesson.  Data can be a useful tool to a business; whether it is being used for targeted marketing campaigns or to work out what consumers want from products and services in your market.  However, there are laws governing data protection and privacy and at the heart of those laws are the principles of fairness and transparency.  Controllers need to be careful as to how they obtain personal data, where they obtain it from, what they do with it and be certain that they have a lawful basis for processing that personal data in the ways that they want to do so; that may be because you have the consent of the data subject, because you have a legitimate interest in the processing or some other lawful ground for processing.  Don’t forget the Privacy and Electronic Communications (EC Directive) Regulations 2003 when conducting direct marketing by electronic means.

Simply because a person has made their personal data available, for example through social media, does not mean that is free to be used by whomever and for whatever they want.  The principles of the Data Protection Act 1998 still apply and the reputational damage that can be suffered may well vastly outweigh any regulatory action taken by the Information Commissioner or by data subjects themselves.

Alistair Sloan

If you are a data controller or an individual who is looking for advice and assistance with any aspect of data protection or privacy law, then you can contact Alistair Sloan on 0345 450 0123 or 0141 229 08800.  Alternatively, you can send him an E-mail.

Data Protection Bill: Committee Day 1

The Data Protection Bill has been winding its way through the legislative process since it was first introduced to the House of Lords in September 2017.  Since then it has completed its passage through the House of Lords and is now being scrutinised by MPs in the House of Commons, having received its second Reading last week.  I made some initial observations on the Bill shortly after it was first published and thought that it was about time that I revisited the general subject of the Bill.

The Bill has now reached the committee stage in the House of Commons and is being considered by a Public Bills Committee, the first meetings of which took place yesterday.  You can read the first sitting, which took place yesterday the morning, in Hansard, meanwhile the second sitting, which took place yesterday afternoon, can be found in Hansard here.

There was a debate yesterday morning on a proposed amendment (‘new clause 12’) which would insert a new clause into the Bill incorporating Article 8 of the Charter of Fundamental Rights of the European Union.  Article 8 of the Charter makes specific provision for the protection of personal data; the amendment was tabled by MPs from opposition parties and was resisted by the Government.  The source of the government’s concern, as set out by the Minister of State yesterday, is that new clause 12 would, in the government’s view, create “a new and free-standing right”.  The Minister went on to say that “[t]he new right in new clause 12 would create confusion if it had to be interpreted by a court.”  This was contested by Liam Byrne MP, who moved the amendment.  Mr Byrne noted that this was a refined version of an amendment that was unsuccessfully moved in the House of Lords.  Mr Byrne described the suggestion that new clause 12 was creating a new and unfettered right as being “nonsense”.  The amendment, while debated yesterday, was not put to a vote; decisions on whether to insert new clauses are not due to be taken until towards the end of the Committee’s consideration of the Bill.  We will need to therefore wait to learn whether it is ultimately included in the Bill or not.

Some amendments were considered and agreed to yesterday, while some others were considered and not agreed to.  In Clause 3 of the Bill, the definition of ‘processing’ has been amended to remove reference to ‘personal data’ and to replace it with ‘information’.  This means that the definition of processing in the Data Protection Bill now reads:  “Processing”, in relation to information, means an operation or set of operations which is performed on information, or on sets of information, such as”.  This means that the definition of processing in Clause 3 of the Data Protection Bill differs from the definition within the GDPR.

The explanation proffered by the Minister in support of these amendments was that they were “designed to improve clarity and consistency of language.”  The Minister argued that “the amendments ensure consistency with terminology in other legislation.”  She also gave her view that the amendments have “no material impact on the use of the term “processing” in parts 2 to 7 of the Bill”.

Clause 7 of the Bill (which deals with the meaning of ‘public authority’ and ‘public body’) has also been amended so as to provide that Ministers, exercising their delegated powers to designate and undesignated (for the purposes of data protection law) public authorities and public bodies, can do so not simply by identifying specific bodies or organisations, but also by way of description.  The changes effectively mean that the provisions in the Data Protection Bill work in the same way as the similar provisions do within the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002.

The controversial immigration exemption in paragraph 4 of Schedule 2 to the Data protection Bill saw a great deal of debate in the afternoon’s sitting.  An amendment to remove the immigration exemption entirely from the Bill was moved and a division took place.  The amendment to remove the exemption from the Bill was defeated by 10 votes to 9 and therefore the exemption remains in the Bill.  The split was among party lines with the Government’s MPs successfully voting down the amendment with all MPs from opposition parties voting in favour of it.

It would not be possible to discuss everything that went on during the course of the committee’s two sittings yesterday, but I have tried to pick out some of the key aspects from yesterday’s proceedings.  The amendment to the definition of processing seems to me to be rather odd and quite frankly unfathomable.  Personal data is a well understood term within the field of data protection and privacy law.  How the courts and Commissioner will interpret “information” is something that we will need to wait and see; if the amendment does in fact make no material change, then it will have been a completely pointless amendment.

I don’t see the controversy of the immigration amendment going away anytime soon.  The Government is satisfied that the exemption strikes the right balance and is one that is permissible in terms of the GDPR.  Campaign groups in opposition to the amendment say that it goes too far and, in any event, is unlawful as it is not permitted by the GDPR.  It will certainly be interesting to see where matters go in that regard.

The attempt to replicate Article 8 of the EU Charter is an interesting proposal; one of the Government’s red lines in relation to the EU withdrawal process is that the EU Charter will cease to apply in the United Kingdom, how the effective inclusion of one article of the Charter would go down with certain members of Parliament is something that remains to be seen.  Whether its inclusion will assist with the issue of ‘adequacy’ following the United Kingdom’s withdrawal from the European Union is debatable (for what it is worth, my initial reaction is it’s unlikely that it would have any bearing at all upon the question of adequacy).

The Committee’s consideration of the Bill is due to continue tomorrow (Thursday 15th March 2018) with sittings starting at 11:30am and again at 2pm.  This is a large and complex Bill and the task of undertaking a line by line scrutiny of it is no easy task, especially in a timetable that will see this line by line scrutiny come to an end on 27th March 2018.

Alistair Sloan

If you would like advice on the General Data Protection Regulation, the new Data Protection Bill or any other Information Law concern then contact our Alistair Sloan on 0345 450 0123 or by completing the form on the contact page of this blog.  Alternatively, you can send him an E-mail directly.

An introduction to the Law Enforcement Directive

Among all of the hype surrounding the General Data Protection Regulation (GDPR) some other aspects of information law are being overlooked; I have already written about the Privacy and Electronic Communications (EC Directive) Regulations 2003 and how they are forgotten about. The GDPR is not the only new piece of EU law which is due to take effect in May and which will impact data protection and privacy law in the United Kingdom. The processing of personal data by data controllers for the purpose of law enforcement falls outside of the scope of the GDPR; instead this is dealt with by the Law Enforcement Directive (LED). As the LED a Directive rather than a Regulation, the LED does not have direct effect and therefore requires to be transposed into Member States’ domestic law. This is being achieved in the UK through Part 3 the Data Protection Bill.

The LED is perhaps not as visible as the GDPR because of its much more limited scope. However, this blog aims to cover all information law bases and it would be remiss of me not to write something on it at least. The LED, and therefore the provisions of Part 3 of the Data Protection Bill, applies to what have been termed as “competent authorities” for the purposes of “the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security”; these purposes are collectively known as the “law enforcement purposes”.

So, who needs to bother about the LED? Obviously, competent authorities have to bother about it because it governs how they process personal data for the law enforcement purposes; however, they are not the only ones. Data Subjects should also be concerned about the LED as it governs how their personal data is processed by these competent authorities and sets out what rights they have in relation to personal data processed by them for law enforcement purposes. The competent authorities are mostly set out in Schedule 7 to the Data Protection Bill; however, clause 30(1)(b) of the Data Protection Bill provides that “any other person if and to the extent that the person has statutory functions for any of the law enforcement purposes” is also a competent authority. The most obvious competent authority is the police; however, there are quite a few others listed within Schedule 7 including Revenue Scotland, the Department for Work and Pensions, the Police Investigations and Review Commissioner and HMRC. Of course, both the Information Commissioner and Scottish Information Commissioner process personal data for the law enforcement purposes and therefore Part 3 of the Data Protection Bill would apply to them when they’re processing personal data in the capacity.  In terms of 30(1)(b) competent authorities, the most obvious example would be local authorities who are responsible for things such as Trading Standards provision and also the investigation of fraud concerning benefits administered by them.

One thing that should be noted is that the security and intelligence services (The Security Service, Secret Intelligence Service and GCHQ) are not covered by the LED. National Security falls outside of the scope of EU law and therefore the European Union has no competence to regulate these areas. Therefore, although the Security Services process personal data for law enforcement purposes, the LED does not apply to them. The Data Protection Bill does make provision for the processing of personal data by the security and intelligence agencies; this can be found in Part 4 of the Data Protection Bill (and falls outside of the scope of this blog post).

Chapter 1 of Part 3 of the Data Protection Bill provides the key definitions which require to be used when applying Part 3. The definitions are broadly the same as those to be found in the GDPR with relevant modifications being made. Therefore if you are familiar with data protection law then these definitions will not be too alien to you.

Chapter 2 of Part 3 of the Data Protection Bill sets out the six principles to be complied with when processing personal data under Part 3. Meanwhile, Chapter 3 sets out data subjects’ rights; including the right to subject access, the right to rectification and the right to erasure or restriction of processing.

The rights of data subjects under part 3 of the Data Protection Bill will be the subject of a separate blog post later in the month; however, it is suffice to say that they have a more limited scope than under the GDPR because of the nature of the processing being dealt with.

There is one final part of the Data Protection Bill to make mention of in this blog post and that is Schedule 8 to the Data Protection Bill. This Schedule sets out the conditions which must be met before a competent authority can carry out sensitive processing of personal data under Part 3. 

The LED is supposed to be transposed into Member States’ domestic law by 6th May 2018; it remains to be seen whether the Data Protection Bill will complete its passage through Parliament and receive Royal Assent in time to allow Part 3 to be commenced by then.

Alistair Sloan

If you require any advice or assistance in connection with the provisions of the Law Enforcement Directive or any other information law concern, please contact Alistair Sloan on 0345 450 0123 or send him an E-mail.

Data Protection and Privacy Enforcement: February 2018

February is a short month, and did not see the same level of publicity by the Information Commissioner’s Office in respect of enforcement action taken to enforce privacy and data protection laws as was seen in January.

Key points 

  • Failing to comply with an Enforcement Notice is a criminal offence (see section 47 of the Data Protection Act 1998); there is a right of appeal to the First-Tier Tribunal (Information Rights) against the terms of an Enforcement Notice and so if you do not agree with the terms of the notice you should seek legal advice about the possibility of making such an appeal.
  • Employees should be careful what they do with personal data; in most cases the enforcement liability will lie with the employer (although, your employer might take disciplinary action against you for failing to comply with company policies and procedures).  However, there are circumstances when employees can be held personally, and indeed criminally, liable for breaches of the Data Protection act 1998.
  • The right of subject access is a fundamental right of data subjects and data controllers must ensure that they comply with their obligations in respect of a subject access request made by a data subject.  The right of subject access remains a key feature of the new European data protection framework and the GDPR strengthens the right of subject access for data subjects.

Enforcement action published by the ICO during February 2018

Pennine Care NHS Foundation Trust
The ICO has conducted a follow-up assessment [pdf] with Pennine Care NHS Foundation Trust finding that the Trust had complied with the terms of the undertaking which it had previously given [pdf] following a consensual audit [pdf] by the Commissioner’s staff.

Gain Credit LLC
Gain Credit LLC was served with an Enforcement Notice [pdf] by the Information Commissioner for failing to comply with a subject access request made to it.  This came to light after the data subject in question made a request to the Information Commissioner that she carry out an assessment pursuant to section 42 of the Data Protection Act 1998 into whether it was likely or unlikely that the processing by Gain Credit LLC was in accordance with the provisions of the Act.

Direct Choice Home Improvements Limited
In March 2016 Direct Choice Home Improvements Limited was served with a Monetary Penalty Notice in the amount of £50,000 [pdf] and also an Enforcement Notice [pdf] for breaching Regulation 21 of the Privacy and Electronic Communications (EC) Directive Regulations 2003 (PECR).  The company continued to breach Regulation 21 of PECR and the Commissioner prosecuted it for breaching the Enforcement Notice.  The company was not represented at Swansea Magistrates’ Court and was convicted in absence.  The company was fined £400 as well as being ordered to pay £364.08 in prosecution costs and a victim surcharge of £40. (Don’t forget that PECR remains part of the privacy and data protection law landscape when the GDPR becomes applicable in May.)

Other Prosecutions
A former employee of Nationwide Accident Repair Services Limited was prosecuted by the Information Commissioner for unlawfully obtaining personal data contrary to section 55 of the Data Protection Act 1998.  The defendant had sold the personal data of his employers’ customers to a third party who then made use of the personal data to contact some of those customers concerning their accident.  The defendant was convicted and fined £500 as well as being ordered to pay costs of £364 and a victim surcharge of £50.  An offence of unlawfully disclosing personal data was admitted to and taken into consideration by the Court.

A former local authority education worker was prosecuted after she unlawfully disclosed personal data contrary to section 55 of the Data Protection Act 1998.  The defendant had taken a screenshot of a council spreadsheet which concerned the eligibility of named children to free school meals and then sent it onto an estranged parent of one of the children.  She pled guilty to three offences and was fined £850 by Westminster Magistrates’ Court as well as being ordered to pay £713 in costs.

Alistair Sloan

If you require advice or assistance in respect of a data protection or privacy law matter, or any other Information Law matter; then contact Alistair Sloan on 0345 450 0123, or send him and E-mail.

New Data Protection Fees

The draft Data Protection (Charges and Information) Regulations 2018 have now been laid before Parliament by the UK Government; it is intended that they will enter into force on 25th May 2018.  The Regulations will introduce the new charging regime that is to replace “notification fees”, once the requirement upon data controllers to notify the Information Commissioner of their processing of personal data.

As expected, the fees will move from the current two-tier structure to a three-tier structure; however, the fee amounts are different to what was proposed in the consultation last year.  The tiers are as follows:

Tier 1
Data controllers who fall into tier 1 will pay an annual fee of £40 to the Information Commissioner.  You fall into this fist tier if you have a turnover of less than or equal to £632,000 for your financial year, or you have no more than 10 members of staff.  Charities also fall into this category as do small occupational pension providers.

Tier 2
Data controllers who fall into tier 2 will pay an annual fee of £60 to the Information Commissioner.  You will fall into this tier if you do not fall into tier 1 and have a turnover less than or equal to £36m for your financial year, or have no more than 250 members of staff.

Tier 3
Data controllers who fall into tier 3 will pay an annual fee of £2,900 to the Information Commissioner.  All non-exempt data controllers who do not fall into the first two tiers will fall into tier three.  The Commissioner has indicated that they will assume that every data controller falls into tier 3 unless they prove the contrary.

These fees do represent a shift from the levels that were consulted on last year.  In particular the top-tier fee that was suggested in October was £1,000 but has now become £2,900.  Data controllers can save themselves a bit of money (a grand total of £5) by paying their annual fees by Direct Debit.

The fees structure that was consulted on had suggested that there would be a premium to be paid by any data controller that also carried out direct marketing activities by electronic means; however, that hasn’t been given effect to in the draft Regulations that have been laid before Parliament,

In terms of working out how many members of staff you have for the purposes of these regulations you can’t just count the number of employees you have.  A member of staff, for the purposes of the Regulations, is: (i) an employee; (ii) a worker, within the meaning of s.296 of the Trade Union and Labour Relations (Consolidation) Act 1992; (iii) an office holder; or (iv) a partner.  Part-time members of staff are counted as one member for these purposes.  To calculate the members of staff you need to work out how many members of staff you employed each month in your last financial year, add together the monthly totals and then divide it by the number of months in your last financial year.  Even members of staff who work outside of the United Kingdom (and, indeed, the European Union) need to be counted.

You do not need to work out how many members of staff you have if you are a charity or if you are a small occupational pension scheme.  Public authorities are required to ignore those reference to turnover and are required only to determine how many members of staff that they have.

If you are processing personal data solely for one of the following eight purposes, you do not need to pay a fee to the Information Commissioner:

  1. Staff Administration;
  2. Advertising, marketing or public relations,
  3. Accounts and records,
  4. Not-for-profit purposes
  5. Personal, family or household affairs
  6. Maintaining a public register
  7. Judicial functions
  8. Processing personal information without an automated system such as a computer

To be able to rely upon this exemption your processing must be solely for one or more of the above noted purposes.  If your processing is for one of those activities in addition to another activity then you will need to pay the fee at the appropriate tier.

In order to ensure that data controllers are paying the correct level of fee, the draft Regulations have provision within them for data controllers to supply various pieces of information to the Information Commissioner; this information fits around establishing which, if any, of the three tiers the controller falls into.

There are a couple of final things to note.  The first is that if you pay a notification fee prior to 25th May 2018 then you will not be required to pay the new fees until that notification has expired.  Therefore, if you are due to notify the ICO under the Data Protection Act 1998 on or before 24th May 2018 you will not be required to pay the new fees until next year.  The final thing to note is that these Regulations are only in draft form; they are still subject to parliamentary approval and could be amended.  However, this blog post reflects the position as contained within the draft Regulations.  Large organisations should, however, be planning to pay significantly more to the Information Commissioner than the £500 they have been paying until now.

Alistair Sloan

If you would like advice or assistance with a privacy or data protection matter, including the GDPR, or any other information law matter then contact Alistair Sloan on 0345 450 0123 or send him an E-mail.

Data Protection/Privacy Enforcement: January 2018

It has been a busy start to the year for the Information Commissioner’s Office (ICO).  The start of 2018 also saw the highest ever sentences imposed on those in breach of Data Protection and Privacy laws in the United Kingdom.  It is time to have a closer look at the Data Protection and Privacy Enforcement action published by the ICO during January 2018 as part of our regular monthly review.  You can read our review of the privacy and data protection enfrocement from December 2017 here.

Key Points

  • If you have access to personal data as part of your employment, ensure that you only access it where there is a genuine professional need for you to do so; even if the reason you are looking for information could be considered harmless.
  • As far as the Information Commissioner is concerned, ‘ignorance is not bliss’; Data Controllers must have adequate and up to date procedures, technology and policies in place to ensure that they are not in breach of any data protection laws or regulations.
  • Organisations can’t generally send advertising or marketing emails unless the recipient has informed the sender that they consent to such emails being sent by, or at the instigation of, that sender.  Any consent must be freely given, explicit and informed but also involve a positive indication signifying the individual’s agreement. In order for consent to be informed by an individual, the individual must know exactly what it is they are consenting to (for more information see Alistair Sloan’s blog post PECR:  The forgotten relative).
  • Failure to notify the Information Commissioner of any personal data breach in accordance with the Notification Regulations will not be tolerated.  If it has come to your attention that there has been a breach, you must come clean and put your hands up. A much wider requirement to notify the ICO of personal data breaches becomes applicable with the GDPR later this year, for more on that see our blog post on Personal Data Breaches under the GDPR.
  • It goes without saying, meticulous attention to detail must be taken when you are sending any correspondence containing personal data, you must ensure that it is sent to the correct person.

Enforcement action published by the ICO in January 2018

The Carphone Warehouse Ltd
The Carphone Warehouse Ltd was served with a Monetary Penalty Notice in the sum of £400,000 after serious failures and inadequate software placed customer and employee data at risk.

Newday Limited
Newday Ltd were served a Monetary Penalty Notice in the sum of £230,000 after approximately 48,096,988 emails were sent to individuals who had not consented to receive marketing, contrary to regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.  The Commissioner decided that the consent relied on by Newday Limited was not sufficiently informed and therefore it did not amount to valid consent.

TFLI Ltd
TFLI Ltd received a Monetary Penalty Notice of £80,000.  This penalty was also in relation to contravention of regulation 22 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.  TFLI Limited sent approximately 1,218,436 unsolicited marketing texts promoting a loan website.

Barrington Claims Ltd
Barrington Claims Ltd were issued a Monetary Penalty Notice in the sum £250,000 after they failed to ensure automated marketing calls were made only to individuals who had consented to receive them. The Commissioner decided to issue a Monetary Penalty under section 55A of the Data Protection Act 1998, in relation to contravention of regulations 19 and 24 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.  The company were unable to provide evidence that it had the consent of individuals to whom it had instigated the calls.

Goody Market UK Ltd
Goody Market UK Ltd were issued a Monetary Penalty Notice in the sum of £40,000 after they failed to ensure that text messages containing marketing material were only sent to individuals who had consented to receive them.  They were also served an Enforcement Notice. The texts were sent on the basis of data sourced from a third party, and purchased on behalf of Goody Market UK Ltd by a data broker.  Goody Market UK Ltd were unable to provide the Commissioner with any evidence that the recipients consented to the marketing messages, having relied on verbal assurance from the data broker.  The Commissioner found that Goody Market UK Ltd had contravened Regulation 22 of PECR.

West Midlands Police
West Midlands Police have signed an Undertaking to comply with the Data Protection Act after the Information Commissioner was informed that a data breach had occurred in relation a Criminal Behaviour Order.  The order was imposed on two individuals, but in a leaflet distributed to publicise the order, the names of the witnesses were revealed.

Miss-sold Products UK Ltd
Miss-sold Products UK Ltd were served a Monetary Penalty Notice in the sum of £350,000 after they failed to ensure that marketing calls were only made to individuals who had consented to receive marketing. The penalty was in relation to contravention of Regulation 19 of the Privacy and Electronic Communications (EC Directive) Regulations 2003.

SSE Energy Supply Ltd
SSE Energy Supply Ltd was issued a Monetary Penalty Notice of £1,000 after they sent an email to an individual in error.   The penalty was issued because of contravention of Regulation 5A of the Privacy and Electronic Communications (EC Directive) Regulations 2003.  This Regulation requires that a provider of a public electronic communications service must notify the Information Commissioner of a personal data breach without undue delay.  SSE Energy Supply Ltd sent an email to the wrong email address, disclosing the name of a customer and their account number.  After they became aware of the breach, SSE Energy Supply Limited did not follow its policies and procedures that were in place and as a consequence there was a delay in reporting the personal data breach to the Information Commissioner.

Prosecutions
There were a number of successful prosecutions reported by the ICO during January 2018:

  1. An investigation by the ICO, which began in 2013, resulted in record fines for Woodgate and Clark Ltd, the company director and private investigators who were involved in the illegal trade of personal information.  A claim had been made on an insurance policy in relation to a fire at business premises which the claimant owned.  Private investigators unlawfully obtained confidential financial information and disclosed it to Woodgate and Clark Ltd, which then disclosed it to an insurer client.  The defendants were all prosecuted under s55 of the Data Protection Act 1998.  Woodgate and Clark Ltd were fined £50,000 in addition to being ordered to pay £20,000 in costs.  The company director was fined £75,000 and was ordered to pay £20,000 in costs; while both private investigators were fined £10,000 and ordered to pay £2,500 in costs.
  2. A director of an accident claims company invented a car crash so that he could trace and get in touch with the owner of a private number plate he wanted to buy.  He was prosecuted at Bristol Magistrates’ Court for a breach of S55 of the Data Protection Act 1998 for the offence of unlawfully obtaining personal data.  He was convicted and received a fine of £335.00.  The defendant was also ordered to pay prosecution costs of £364.08 and a victim surcharge of £33.00.
  3. An individual was charged with two offences of unlawfully disclosing personal data.  The defendant had come into possession of a USB stick and published sensitive police information from it on Twitter.  He was sentenced to a 12 month conditional discharg,e in part because he had been placed on a stringent bail conditions including wearing an electronic tag before the hearing.  He had to pay £150 in cost and £15 victim charge.

Vicki Macleod Folan

If you require advice and assistance in connection with any of the issues above, or any other Information Law matter, please do contact Alistair Sloan on 0345 450 0123 or by completing the form on the contact page of this blog.  Alternatively, you can send him an E-mail directly.

It’s just legitimite interests, isn’t it?

The General Data Protection Regulation (GDPR) becomes applicable in the United Kingdom on 25th May 2018.  Preparations are well underway in business, government and the regulator for the new privacy and data protection landscape.  People are trying to find their way through the GDPR and the Data Protection Bill to understand exactly what it is that they’re required to do in order to comply with the new framework, but there are a lot of misunderstandings about certain requirements of the GDPR.  I have already dealt with one of those, the issue as to whether or not consent is required under the GDPR on this blog.  Another area where there appears to a lot of misunderstanding is with the legitimate interests ground for processing, especially in the area of direct marketing.

Article 6(1)(f) of the GDPR provides that it is lawful to process the personal data of a data subject where the “processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.”  This is the legitimate interests ground for processing; but as can be seen from a proper reading of the condition, it is not the silver bullet condition that some people seem to think that it is.

There are essentially three elements to the condition:  (1) necessity; (2) legitimate interests of the controller or a third party; (3) the interests or fundamental rights of the data subject.  Therefore before being able to rely upon legitimate interests as the processing condition, it is essential that controllers go through a three stage process.  The first stage is to identify what the interests are.  In determining whether the interest identified by the data controller is a legitimate interest, it is necessary for them to consider whether a data subject can reasonably expect, at the time and in the context of the collection of the personal data, that processing for this purpose may take place.  If a data subject could not reasonably expect that the processing envisaged by the data controller may take place, at the time and in the context of collection of the personal data, it will not be a legitimate interest.

The second stage is to consider necessity; the processing must be necessary for the legitimate interest(s) being pursued.  If the processing is not necessary then a data controller cannot rely upon the ‘legitimate interests’ condition for processing the personal data in question.  The ICO currently puts it this way “[i]f you can reasonably achieve the same result in another less intrusive way, legitimate interests will not apply.”  It is therefore essential to consider whether there are other ways to fulfil the legitimate interest(s) identified.  The test does not require it to be “strictly necessary” or “absolutely necessary”, but it is still a high test

The final element that needs to be considered before a decision to rely upon legitimate interests can be taken, is whether the legitimate interests are overridden by the fundamental rights and freedoms of the data subject.  This can be a very difficult assessment to make and can, on occasions, be on a knife-edge.  It is fundamentally about proportionality and in a lot of cases the data subject’s fundamental rights and freedoms will override the legitimate interests with the result that another condition needs to be found to enable processing take place.

At the very outset I did mention that there is a lot of misunderstanding about legitimate interests in the field of direct marketing.  It is true that the GDPR does state, in Recital 47, that “[t]he processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest”, but it’s not as simple as that.  Firstly it is important to note that the Recital states that it “may be” a legitimate interest; that is not the same thing as saying that it “will be” or “is” a legitimate interest.  It only opens the door to marketing being a legitimate interest; it does not remove the need to consider whether it is, in any given context, a legitimate interest.

Secondly, it is important not to consider the GDPR in isolation.  I have already written about the forgotten relative of the GDPR:  The Privacy and Electronic Communications (EC Directive) Regulations 2003.  These are extremely relevant when conducting direct marketing by electronic means (such a by telephone, E-mail or text message).  Processing personal data for the purposes of marketing might well be lawful because it can be shown that it is a legitimate interest for the controller or a third party, but how that marketing is then delivered must comply with the other relevant laws and codes which regulate marketing activity.

The legitimate interests condition is a flexible one, but data controllers should not assume that if no other condition applies, or is appropriate, that they can simply say “it’s legitimate interests” and be done with it.  Where a controller does rely upon legitimate interests, the accountability principle will kick in and the supervisory authority may well ask for it to be justified.  Therefore, where it is proposed to rely upon legitimate interests a record should be kept demonstrating how each of three elements to the legitimate interests condition is met.

Alistair Sloan

If you would like advice or assistance with a privacy or data protection matter, or any other information law matter then contact Alistair Sloan on 0345 450 0123 or send him an E-mail.

 

Data Protection, Brexit and the Charter of Fundamental Rights

On the face of it the Irish Supreme Court’s decision in Minister for Justice v O’Conner [2018] IESC 3 has no place on a blog focused on information law matters as they apply in Scotland and the wider United Kingdom.  The case involves a European Arrest Warrant (EAW) issued by the United Kingdom and the surrender of the individual to the United Kingdom under that EAW.  The Irish Supreme Court has granted leave to Mr. O’Connor to appeal to it; this is so that a reference can to be made to the Court of Justice of the European Union.  The context of that reference is the giving of notice by the United Kingdom under Article 50 of the Treaty on the European Union and that as a consequence the United Kingdom will leave the European Union.

It is not obvious what this has to do with information law at all; however, it might well have an impact upon the flow of personal data between the United Kingdom and the European Union.

The UK Government has identified a number of ‘red lines’ in its negotiations with the European Union; one of those red lines is that the Charter of Fundamental Rights of the European Union will cease to apply to the United Kingdom when it leaves the European Union.  All of the public statements which have been made by Ministers is suggestive that the Charter will not be incorporated into UK domestic law and it will not agree to a treaty with the European Union which continues its application.  Whether or not that is the case at the end of the day remains to be seen; however, it is creating uncertainty.

My initial thoughts on this case are that it could be significant beyond the question of extradition under the EAW scheme.  From a reading of the judgment of the Irish Supreme Court, it is clear that there are fundamental issues of European Union Law to be addressed in this reference.

It is a consequence of the operation of Article 50 that at the end of the two year period provided for therein that the treaties cease to apply to the leaving State (subject to an agreement to extend the Article 50 period or any agreement between the EU and the leaving state which continues the application of EU law).  At its most basic, it means that European Union Law ceases to apply to the leaving state.  This is a very real problem and is the reason for the European Union (Withdrawal) Bill, which has its aim to ensure that the domestic statute book works and certainty is given as to what the law in the United Kingdom is.

So, what precisely does this have to do with information law?  Articles 44-50 of the General Data Protection Regulation deal with transfers to third countries; a third country being a country which is outside of the Union.  Upon Brexit the United Kingdom will be outside of the Union and the flow of personal data from controllers and processors inside of the Union to controllers and processors in the United Kingdom will need to be in compliance with Articles 44-50 of the GDPR.

What most people in the data protection world are hoping for is that the United Kingdom will get a favourable adequacy decision from the European Commission; which will enable the free flow of personal data between the Union and the United Kingdom on much the same basis as it is presently while the United Kingdom remains part of the European Union.  However, many are sceptical as to whether the United Kingdom will be successful in gaining such a decision; it may not be enough simply to show that the GDPR still forms part of UK domestic law, but that is a topic for another blog post.

What appears to be the underlying issue in the reference being made by the Irish Supreme Court, is whether a person can be surrendered to the United Kingdom under a EAW while there is uncertainty about what the arrangements will be after Brexit in terms of that citizen’s rights under European Union Law.  The Charter of Fundamental Rights of the European Union features a number of times in the judgment and seems to be one of the areas of EU law that is at issue (and Article 8 of the Charter guarantees rights to the protection of personal data).

It seems to me that if the opinion issued by the Court of Justice of the European Union in respect of the reference made is in any way supportive of Mr. O’Connor’s position, it could raise questions not only about personal data transferred between the Union and the UK post-Brexit; but also about personal data which is transferred pre-Brexit and which will continue to be processed in the United Kingdom post-Brexit.

This reference to the Court of Justice of the European Union is certainly one that data protection professionals ought to be keeping an eye on; it has the potential to cause severe headaches for controllers and processors who rely on personal data coming in from the other 27 members of the European Union.

Alistair Sloan

If you would like advice or assistance with a privacy or data protection matter, or any other information law concern then contact Alistair Sloan on 0345 450 0123 or send him an E-mail.

Data Protection/Privacy Enforcement: December 2017

Our monthly look at the enforcement action taking by the Information Commissioner in respect of Privacy and Data Protection matters continues with a review of the enforcement action published by the ICO in December 2017.  You can view last month’s review of the November 2017 enforcement action here.  December 2017 was not an overly busy month for the ICO; they published just one Enforcement Notice.

Key Points

  • Ensure that you have in place adequate procedures to ensure that you handle Subject Access requests within the time allowed by the law.

Enforcement Action

Secretary of State for Justice
The Secretary of State for Justice was served with an Enforcement Notice [pdf] requiring him to deal with his department’s backlog of delayed Subject Access Requests.  As at 10 November 2017 the Ministry of Justice had 793 Subject Access Requests which were over 40 days old; some of this backlog was made up of Subject Access Requests made in 2014.  This was a reduction from the 919 requests more than 40 days old as at 28 July 2017 (which included requests going back to 2012).  The Data Protection Act 1998 requires that Subject Access Requests be responded to within 40 calendar days (this will be reduced to 30 calendar days under the GDPR – you can find out more about this change, and others to the right of subject access requests, in my blog post on Subject Access Requests under the GDPR).

Alistair Sloan

If you require advice or assistance with Subject Access Requests, or any other Information Law matter then contact Alistair Sloan on 0345 450 0123 or send him and E-mail