Tag Archives: Aggregate IQ

Data Protection and Privacy Enforcement: October 2018

Regular readers of this blog will know that every month I look at the published enforcement action taken by the Information Commissioner in respect of privacy and data protection law. The infractions are often very similar and the same key lessons to take away from the enforcement action appear frequently; October’s enforcement action proves no different. There is, however, a mixture of enforcement action taken under the Data Protection Act 1998 (“DPA98) – in respect of breaches that occurred prior to the 25 May 2018 – and enforcement action taken under the Data Protection Act 2018 (”DPA18).

Key Lessons

  • When the Commissioner’s office makes contact with you in the course of an investigation it is advisable to cooperate with the investigation. The Commissioner has powers to require persons (not just data controllers) to provide her office with information. It is a criminal offence not to comply with an information notice issued by the Commissioner under the DPA98 while a person who fails to comply with an Information Notice served under the DPA18 can be made the subject of an Information Order by the court.
  • Before making telephone calls for the purpose of direct marketing it is essential that organisations check their list against the list held by the Telephone Preference Service. It is against the law to call a number listed with the TPS for the purposes of direct marketing unless you can show that the recipient has not objected, for the time being, to receiving marketing calls from you. The law has recently been changed and the Commissioner will soon be able to serve a monetary penalty on directors of a company for breaches of the requirements of the Privacy and Electronic Communications (EC Directive) Regulations 2003.
  • Any removable media such as CDs and USB memory sticks should be encrypted to prevent unauthorised access to personal data in the event that the media is lost or stolen. Controllers should also consider putting in place technical barriers to ensure that personal data is not unnecessarily being put onto removable media.
  • When drafting privacy statements where you are seeking to obtain consent for direct marketing; it is important to be specific about just what marketing might be sent. It is insufficient to rely upon statements along the lines of “you consent to receive marketing from our carefully selected third party affiliates” and similar.
  • The person who instigates a call is liable for a contravention of PECR, not the person who makes the call. Therefore you cannot avoid liability by engaging a third party contractor to make calls on your behalf. If you have directed that the calls be made then you are liable for any contraventions of PECR. Therefore, companies who engage third parties to undertake telemarketing on their behalf need to ensure that they have in place adequate due diligence to ensure that there are no negligent contraventions of PECR.
  • It’s not enough to simply rely upon your own internal suppression lists when making telephone calls for the purposes of direct marketing; it is also important that call lists as screened against the list maintained by the Telephone Preference Service. It’s also important that companies engaging in telesales regularly obtain an updated version of the list maintained by the TPS and you should never seek to rely upon a version of the list that is more than 28 days old.
  • It can be worthwhile brining appeals against Notices served by the Commissioner – especially where the terms of the notice are unclear. Where reasons are provided for a decision they generally require to be intelligible.

Enforcement action published by the Information Commissioner in October 2018

Oaklands Assist UK Limited
Oaklands Assist UK Limited (“OAUK”) was served with a Monetary Penalty Notice  in the sum of £150,000 [pdf] after the Commissioner found that OAUK had used a public electronic communications service for the purpose of direct marketing in contravention of Regulation 21 of the Privacy and electronic Communications (EC Directive) Regulations 2003 (“PECR”). It appears that OAUK did not initially comply with the Commissioner’s investigation as the penalty notice states that the Commissioner had to serve an Information Notice on OAUK and it only made contact with the Commissioner’s office when they were threated with prosecution for failure to comply with an Information Notice. The Commissioner found that OAUK had made 63,724 direct marketing calls to numbers that were listed on the TPS, in contravention of Regulation 21 of PECR.

Heathrow Airport Limited
Heathrow Airport Limited (“LHR”) was served with a monetary penalty notice in the sum of £120,000 [pdf] after the Commissioner found that it had breached the seventh data protection principle in schedule 1 to the DPA98. LHR had lost an unencrypted USB memory stick which had been found by a member of the public in West London. The member of the public who found the USB memory stick took it to a public library where they accessed it. Approximately 1% of the files on the memory stick contained personal data, including sensitive personal data. The Commissioner found that the use of removable media was widespread within LHR, but that there was little in the way of measures in places to ensure oversight. Furthermore, there were no technical barriers in place to limit or restrict the downloading of information from LHR’s systems onto removable media.

Boost Finance Limited
Boost Finance Limited (“Boost”) was served with a monetary penalty notice in the sum of £90,000 [pdf] after the Commissioner found that it was responsible for a large number of unsolicited E-mails in respect of pre-paid funeral plans. The Commissioner found that Boost (trading as findmeafuneralplan.com) had instigated, via affiliates that it had appointed, in excess of 4 million unsolicited marketing E-mails contrary to Regulation 22 of PECR. The E-mails were sent to individuals who had subscribed to a number of Boost’s affiliates. The Commissioner concluded [para 16] that Boost had “relied upon inadequate, generic, vague, misleading, tiered and incomplete personal data collection methods and privacy statements as a way of obtaining consent to send direct marketing E-mails.”

Aggregate IQ Data Services Limited
This is not a new Enforcement Notice, but rather it is a notice of variation of the first ever enforcement notice served under the DPA18 [pdf]. Aggregate IQ Data Services Limited (“AIQ”) was served with an enforcement notice by the Commissioner in respect of her investigation into data analytics in politics (which arose out of the allegations surrounding Facebook and Cambridge Analytica). AIQ had appealed the Notice to the First-Tier Tribunal (Information Rights) and has since discontinued that appeal. The revised notice is in much tighter terms than the original notice served by the Commissioner. The revised notice requires AIQ to “[e]rase any personal data of individuals in the UK, determined by reference to the domain name of the email address processed by AIQ, retained by AIQ on its servers as notified to the Information Commissioner…” AIQ is required to do this within 30 days of the Office of the Information and Privacy Commissioner of British Columbia notifying it that either the OIPC no longer requires it for an investigation, or that the OIPC informs AIQ that it is happy for AIQ to comply with the notice (whichever occurs the soonest).

Facebook Ireland Ltd
Facebook Ireland Ltd is the company who UK users (and indeed other EU users) of the Facebook social media platform have a relationship with. The Commissioner served Facebook Ireland with a monetary penalty notice in the sum of £500,000 for breaches of the first and seventh data protection principles [pdf]. The Commissioner considered that Facebook UK Limited, a UK establishment, had carried out certain activities on behalf of Facebook Ireland and Facebook Inc. As the breaches occurred while the DPA98 was still in force, £500,000 represents the maximum penalty that the Commissioner could issue. It is understood that Facebook Ireland has appealed the monetary penalty to the First-Tier Tribunal (Information Rights).

ACT Response Limited
The Information Commissioner served ACT Response Limited (“ACT”) with a monetary penalty notice in the amount of £140,000 [pdf] after she found that ACT had instigated in excess of £490,000 telephone calls for the purposes of direct marketing in contravention of Regulation 21 of PECR. The company operated its own internal suppression list, but did not screen its lists against the Telephone Preference Service list. ACT provided a copy of a training manual to the commissioner during her investigation, which contained a script which directed those making the calls to ask whether a person was listed on the TPS and to apologise if they were. ACT tried to blame the contravention on one of its sister companies as the company that made the calls, but the sister company made the calls on behalf of ACT and the lines used to make the calls were registered to ACT.

Alistair Sloan

If you require advice and assistance in connection with any of the data protection/privacy issues above, or any other Information Law matter, please do contact Alistair Sloan on 0141 229 0880 or by sending him an E-mail directly.  You can also follow our dedicated information law twitter account.

Facebook, Fines and Enforcement: ICO investigation into political campaigning

In March the Commissioner executed a warrant under the Data Protection Act 1998, to much fanfare and press coverage, on Cambridge Analytica – the data analytics firm who had been involved in the election campaign by US President Donald Trump and who had allegedly undertaken work for Leave.EU in the 2016 referendum on whether the UL should remain a member of the European Union or not. At the same time the Information commissioner announced a much wider investigation into compliance with data protection and privacy laws in political campaigning.

The Information Commissioner has today published a report giving an update on that wider investigation [pdf]. There has been much fanfare around this report and in particular a suggestion that Facebook has been served with a Monetary Penalty Notice in the amount of £500,000. This would be big news; it may not be a large sum of money to Facebook, but £500,000 is the maximum that the Information commissioner can serve a Monetary Penalty Notice for under the Data Protection Act 1998.

However, it has become clear that Facebook has not been served with a Monetary Penalty Notice in the amount of £500,000. The first thing to note here is that the Data Protection Act 1998 still applies; the alleged breaches of data protection law that the Commissioner is concerned with pre-dated 25 May 2018 and therefore the powers under the General Data Protection Regulation (GDPR) do not apply. What has happened is that the Information Commissioner has served a “Notice of Intent” on Facebook indicating that the Commissioner intends on serving Facebook with a Monetary Penalty Notice in the amount of £500,000. This is the first stage in the process of serving a Monetary Penalty Notice, but it is by no means guaranteed that (a) a Monetary Penalty Notice will be issued; and (b) that it will be in the amount of £500,000.

Facebook will have the opportunity to make written representations to the Information Commissioner on various matters, including whether the statutory tests for serving a Monetary Penalty Notice have been met and on the amount of the Penalty. The Commissioner must take account of these representations when making a final decision on serving the Monetary Penalty Notice: not to do so would likely result in an appeal against the Notice to the First-Tier Tribunal (Information Rights), which could ultimately result in the Monetary Penalty Notice being reduced in amount or quashed altogether. If Facebook brings forward evidence to the Commissioner that means she can no longer make certain findings in fact that will have an impact on both her ability to serve the Monetary Penalty Notice and the amount of that notice.

It could be many more weeks, if not months before we know whether a Monetary Penalty Notice is in fact being served on Facebook and how much it is for. The Commissioner must serve the Monetary Penalty Notice on Facebook within six month of serving the Notice of Intent.

There are some other aspects of the Commissioner’s report that are worthy of some brief consideration. The Commissioner has announced that she is intending on prosecuting SCL Elections Limited. The information given by the Commissioner suggests that this prosecution is to be limited to one very specific issue: their failure to comply with an Enforcement Notice previously served on the company. The Enforcement Notice was served on the company after they failed to comply with a subject access request received by them from a US academic. The company was in administration when the Enforcement Notice was served and remains in administration today. The Information Commissioner is able to prosecute offences under the legislation it is responsible for enforcing in its own right; except in Scotland where it requires to report the matter to the Procurator Fiscal in the same way as every other law enforcement agency is required. How successful that prosecution will be and what benefit it will bring remains to be seen given that the company is in administration. Even if the company is successfully

We have also seen what appears to be the first piece of enforcement action taken under the Data Protection Act 2018 and the General data Protection Regulation.  The Commissioner has served an Enforcement Notice on the Canadian company, Aggregate IQ [pdf]. This amounts to what could be termed as a “stop processing notice” and it requires Aggregate IQ to, within 30 days, “cease processing any personal data of UK or EU citizens obtained from UK political organisations or otherwise for the purposes of data analytics, political campaigning, or any other advertising.”

Failure to comply with an Enforcement Notice under the Data Protection Act 2018 and the GDPR is not (unlike under the Data Protection Act 1998) a criminal offence; however, a failure to comply can result in an administrative fine of up to €20 million or 4% of global turnover (whichever is the greater). How successful the ICO will be at enforcing this enforcement notice, given that the company is located in Canada and appears to have no established base in the UK, or any other EU member state, remains to be seen.

Other investigations are still ongoing. The Commissioner appears to be continuing to investigate whether there was any unlawful data sharing between Leave.EU and Eldon Insurance. Investigations are also being undertaken into the main ‘Remain’ campaign in the EU referendum and also into all of the UK’s main political parties. It remains to be seen what will happen there.

The Commissioner’s report also informs us that the appeal by the United Kingdom Independence Party (UKIP) against an Information Notice previously served upon them has been dismissed. The First-Tier Tribunal (Information Rights) has not yet published a decision in that case on its website, but should it do so I shall endeavour to blog on that decision (especially given that there has never to my knowledge been an appeal to the Tribunal against an Information Notice). Failure to comply with an Information Notice is a criminal offence, and a company was recently fined £2,000 at Telford Magistrates’ Court for that very offence.

Alistair Sloan

If you require advice or assistance on a matter relating to data protection or privacy law then you can contact Alistair Sloan on 0141 229 0880 or send him an E-mail. You can also follow our twitter account dedicated to information law matters.