Tag Archives: Data Protection Act 1998

Nefarious Endeavours and Vicarious Liability for Data Breaches

Last week I highlighted the important decision handed down by Mr Justice Langstaff sitting in the English High Court in the case of Various Claimants v WM Morrisons Supermarket PLC  [2017] EWHC 3113 (QB).  In that blog post I stated that the judgment was lengthy and would take some time to properly read and digest and that I would cover the judgment in much more detail in due course.  It has indeed taken some time to read and digest, but I am now in a position to bring readers a much more in-depth consideration of the judgment.

The facts sitting behind the Morrisons decision are stark.  An employee of the Defendants, Andrew Skelton, ran a business on the side.  His business was connected to the slimming industry and involved him sending a perfectly legal drug, which was in the form of a white powder.  On 20th May 2013, Mr Skelton left a pre-paid package with Morrisons’ mail room which contained this white powder.  While the package was being handled by staff in the mail room it burst open and some of the contents spilled out.  This triggered a process within Morrisons that could have resulted in the mail room being closed; however, that was not necessary.

Mr Skelton was eventually disciplined by Morrisons in connection with this incident.  He had committed no criminal offences in connection with the incident:  the drug was perfectly legal and he had paid for the postage himself.  However, Morrisons decided that his conduct was not in keeping with their values and issued him with a verbal warning.  Mr. Skelton disagreed with this sanction and utilised the company’s internal appeals process to appeal the disciplinary decision; that appeal was unsuccessful.  Mr Skelton took exception to the way in which we was treated and began to embark upon a criminal enterprise which was designed to damage the Defendants.

Mr Skelton was employed as an IT internal auditor within Morrisons.  This meant that he was highly literate in IT and also meant that he had access to personal data.  It is not necessary to go into the facts in much more detail.  It is suffice to say that in the course of his employment with Morrsions, Mr. Skelton lawfully processed personal data which had been extracted from the company’s payroll software.

As part of his nefarious endeavour, Mr. Skelton made a personal copy of the personal data and proceeded to post it onto the internet in January 2014.  By this time, Mr. Skelton had left Morrisons (having resigned).  By March 2014, the fact that vast quantities of personal data from Morrisons’ payroll software had been posted onto the internet had not been discovered.  Mr. Skelton then, anonymously, sent a CD of the personal data to a number of local newspapers including a link to where the personal data had been posted.  One of the local newspapers altered Morrisons to the publication of the personal data and Morrisons took steps to have it removed and to investigate matters.

Ultimately, Mr. Skelton was arrested and charged with various offences under both the Data Protection Act 1998 and the Fraud Act 2006.  He was later convicted and sentenced to a period of imprisonment.  With that context now set out, it is time to turn to the civil claim brought by over 5,000 of the affected data subjects against Morrisons.

The claimants effectively argued two primary positions:  (1) that Morrisons was directly liable for the breach arising out of its own acts and omissions; and (2) alternatively, that Morrisons was vicariously liable in respect of Mr. Skelton’s actions.

In advancing the case for primary liability, Counsel for the Claimants argued that Morrisons was at all material times the data controller of the payroll data which Mr. Skelton had misused for his criminal enterprise.  This argument was repelled by Langstaff J.  Mr Justice Langstaff concluded that by taking it upon himself to decide that he was going to copy the personal data and place it on the internet, Mr. Skelton had put himself into the position of deciding what personal data would be processed and the purposes for which it would be processed.  Mr. Skelton was therefore the data controller, not Morrisons.  It was therefore Mr. Skelton’s actions that were in breach of the Data Protection Principles rather than the actions of Morrisons.

The rejection of the primary liability then brought Mr Justice Langstaff onto the question of secondary liability.  Could Morrisons be held as being vicariously liable for the actions of Mr. Skelton, and if so, were they vicariously liable for the actions of Mr. Skelton?  Mr Justice Langstaff decided that Morrisons could, and indeed were, vicariously liable for the actions of Mr. Skelton in publically disclosing the Claimants’ personal data on the internet.  In reaching this conclusion, Mr Justice Langstaff has seemingly reached two contradictory conclusions:  that Mr. Skelton was acting independently of Morrisons (thus making him a data controller in his own right) while at the same time holding that Mr. Skelton was acting in the course of his employment (thus opening the door for viacarious liability to attach to Morrisons).  These are not necessarily easy to reconcile and as a consequence it may well end up in the Court of Appeal (or indeed, possibly even the Supreme Court) in due course.  Morrisons have, as I previously noted, been granted permission to appeal the vicarious liability finding to the Court of Appeal by Langstaff J.

The Defendants essentially attacked the vicarious liability position using a three pronged approach.  First, they argued, that the statutory scheme of the Data Protection Act 1998 excluded the possibility of there being vicarious liability at common law.  Their second prong was very much based upon the premise of their first:  they argued that if the statute impliedly excluded vicarious liability, it would not be constitutionally possible for the courts to impute such liability into the scheme.  The third prong of their attack was based on Mr. Skelton acting as his own independent data controller.  If he was so acting, the Defendants argued; then he could not also be acting in the course of his employment such as to make Morrisons vicariously liable for his actions.

Langstaff J, in holding that Morrisons were vicariously liable, looked closely at the timeline of events which had occurred.  Mr Justice Langstaff took the view that “what happened was a seamless and continuous sequence of events” [para 183].  The actions of Mr. Skelton as an independent data controller were sufficiently linked to his employment at Morrisons so as to have the result of Morrisons being vicariously liable for his actions as an independent data controller.

It is clear from paragraph 196 of the judgment that Langstaff J was troubled by the conclusions that he had reached.  One point was singled out for particular attention as the one which “most troubled” him; that was that by finding Morrisons as being vicariously liable he had in effect assisted Mr. Skelton in his criminal endeavours.  The ultimate aim of Mr. Skelton’s nefarious activities was to cause harm to Morrisons; a finding of vicarious liability for the distress caused by the data subjects opens up the possibility that each and every single one of those affected will seek compensation from Morrisons.  Even if the payments to each data subject are low; if they end up having to be made to the approximately 10,000 employees who were affected the financial burden to Morrisons is not going to be insignificant.  That will represent a harm caused to Morrisons; perhaps harm that was not envisaged by Mr. Skelton when he started upon his nefarious activities; however, it is a harm that will be suffered by Morrisons arising.   The ultimate aim of Mr. Skelton’s nefarious activities was to cause harm to Morrisons; a finding of vicarious liability for the distress caused by the data subjects opens up the possibility that each and every single one of those affected will seek compensation from Morrisons.  Even if the payments to each data subject are low; if they end up having to be made to the approximately 10,000 employees who were affected the financial burdern to Morrisons is not going to be insignificant.

It remains to be seen whether Morrisons will appeal the judgement; they already have permission to take the matter to the Court of Appeal.  Of course, the judgment of Lansgatff J is not binding upon any court in Scotland; however, it will likely be considered as persuasive authority in both the Sheriff Court and the Court of Session.  Data Controllers in Scotland should pay as much attention to the case as those based in England and Wales.

Alistair Sloan

If you would like to discuss an issue related to data protection, or any other information law matter, then contact Alistair Sloan on 0345 450 0123.  Alternatively, you can send him an E-mail.

Vicarious Liability in Data Protection Law

This Morning Mr Justice Langstaff, sitting in the High Court of Justice, handed down a judgment in the case of Various Claimants –v- Wm Morrisons Supermarket PLC [2017] EWHC 3113 (QB).  In March 2014 the Defenders, Morrisons, revealed that its payroll data for the majority of its staff had been stolen.  The data which had been taken had been published online on a file sharing website earlier that year; it was discovered in March when copies of the data were sent anonymously to three newspapers together with a link to the online published version. The investigation that followed resulted in Andrew Skelton, formerly a senior Manager with the company, being convicted of fraud at Bradford Crown Court in 2015.  Mr Skelton was sentenced to eight years’ imprisonment.

In total around 100,000 of the Defenders’ 120,000 employees were affected by the actions of Mr Skelton.  Of those, 5,518 employees raised proceedings in the High Court claiming compensation for a breach a statutory duty (under the Data Protection act 1998) and also at common law.  The Claimants’ primary position before the court was that the Defenders were directly liable.  However, they argued that, in the alternative, the Defenders were vicariously liable.

In a judgment which is 59 pages long and contains 198 paragraphs, Langstaff J, dismissed the direct liabiality argument; however, found that the Defenders were vicariously liable.  This is an important judgement in the field of privacy and data protection and it is one that employers should certainly be aware of.  The court has found a data controller liable to the claimants arising out of a criminal enterprise by one of their employees.  It is certainly worthy of much fuller analysis and I will provide such an analysis on this blog in due course; however, it is a lengthy judgment and it will take some time to properly read and digest.

It should be noted that this may not be the end of this litigation; Morrisons have been given permission by Langstaff J to appeal the finding on vicarious liability to the Court of Appeal if they so wish.  We await to see whether Morrisons decide to appeal the decision.

Alistair Sloan

If you would like advice or assistance in connection with Data Protection/Privacy, or if you would like advice and assistance with any other Information Law matter we would be pleased to hear from you. You can contact Alistair Sloan on 0345 450 0123.  Alternatively, you can send him an E-mail.

Data Protection/Privacy Enforcement: October 2017

Continuing the regular monthly look at Data Protection and Privacy enforcement taken by the Information Commissioner, this blog post reviews the enforcement action published during October 2017.

Key Points

  • When seeking consent for the purposes of direct marketing, be clear and precise in the language that you use.
  • When buying-in lists of contact details for the purpose of Direct Marketing you are responsible for ensuring that the there is valid consent in place so carry out your own due-diligence.
  • You are responsible for the direct marketing calls made by your agent as you are the instigator of the calls
  • If you have access to personal data as part of your job, do not access it unless you have a valid reason to do so in connection with your employment.

Enforcement Action published by ICO in October 2017

Xerpla Limited

Xerpla Limited was served with a Monetary Penalty Notice [pdf] in the amount of £50,000 after the Information Commissioner found that they had sent more than 1 million unsolicited direct marketing communications by electronic mail.  The Information Commissioner considered that Xerpla was not clear or specific enough about who subscribers were agreeing to receive marketing from.

Vanquis Bank Limited

Vanquis Bank Limited were served with an Monetary Penalty Notice [pdf] in the amount of £75,00 and an Enforcement Notice [pdf] after the Information Commissioner found that they had sent text messages and E-mails marketing credit cards without consent.

The Lead Experts Limited

The Lead Experts Limited were served with a Monetary Penalty Notice [pdf] in the amount of £70,000 and an Enforcement Notice [pdf] after the Information Commissioner found that they had instigated automated marketing calls to telephone subscribers without the subscriber’s consent.

Prosecutions

A former employee of Kent and Medway NHS and Social Care Partnership Trust was fined £300, ordered to pay prosecution costs of £364.08 and a victim surcharge of £30 after pleading guilty to an offence under the Data Protection Act 1998.  The defendant had accessed the health records of a single patient 279 times over a three-week period in October and November 2015, viewing the files up to 50 times in a day.  The patient was known to the defendant, but she had no valid lawful reason to access the records and did so without her employer’s consent.

Alistair Sloan

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

Compensation in Data Protection law

Section 13 of the Data Protection Act 1998 makes provision for a data subject to raise court proceedings for payment of damages where there has been a breach of the Data Protection Act 1998 which has caused them damage and/or distress.  The provisions in Section 13 have not been used as often as they might otherwise have; this may have been partly down to the way in which the legislation was initially drafted, but that was rectified (in England, at least) by the English Court of Appeal in Google Inc v Vidal-Hall and ors [2015] EWCA Civ 311.

The General Data Protection Regulation, which is due to become applicable in the UK from 25th May 2018, makes provision for data subjects to obtain compensation from controllers and processors in Article 82.  The right is for “any person who has suffered material or non-material damage as a result of an infringement of [the GDPR]” to be compensated.  Clause 159(1) of the Data Protection Bill (which is still in the early stages of the parliamentary process), provides that this “includes financial loss, distress and other adverse effects.”

A Data Subject is not limited to claiming compensation from the controller.  The GDPR provides that a processor will “be liable for the damage caused by processing only where it has not complied with the obligations…specifically directed to processors or where it has acted outside or contrary to lawful instructions of the controller.”

Article 82(3) of the GDPR introduces a defence to such a claim for compensation, but it is an exceptionally high test.  No liability arises where the controller or processor “proves that it is not in any way responsible for the event giving rise to the damage.”  The burden of proof falls on the controller or process and liability attaches even where the processor or controller is responsible for the event causing the damage in the most minor of ways.

The terms of Article 82(3) create joint and several liability for controllers and processors.  In a situation where multiple controllers and/or processors are all partially responsible for the event giving rise to the damage; the data subject could elect to sue any one of them (or indeed, all of them).  Where the data subject elects to sue just one controller/processor who is responsible, controller/processor is entitled to recover from the other controllers/processors “that part of the compensation corresponding to their part of responsibility for the damage.”

Where the data subject elects to sue more than one controller/processor then Recital 146 of the GDPR explains that, in accordance with Member State law, compensation may be apportioned by the court according to the responsibility of each controller or processor for the damage caused by the processing.

The GDPR does not stipulate any maximum amount of compensation that can be awarded to data subjects; however, Recital 146 of the GDPR explains that data subjects should receive full and effective compensation for the damage they have suffered.  Quite what “full and effective compensation” mean is something that will be worked out as the courts grapple with the new provisions.  There have been almost no published decisions from the Scottish courts in respect of claims for compensation under Section 13 of the Data Protection Act 1998, but where there have been decisions the compensation awarded has not been particularly high.  For example, Sheriff Ross awarded the each of the Pursuers £8,364 in Woolley v Akbar [2017] SC Edin 7.  That case concerned the use of CCTV at private dwellings and the compensation figure was calculated on a nominal rate of £10 per day that the Defender was in breach of the Act.

The GDPR only applies to processing of personal data in areas which are within the competence of the European Union; however, the Data Protection Bill extends the scope of the GDPR to areas beyond the competence of the European Union.  Clause 160 of the Bill provides for compensation where it cannot be claimed under Article 82 and the clause mirrors the terms of Article 82.

In Scotland both the Sheriff Court and the Court of Session will have jurisdiction to hear claims under Article 82 of the GDPR and Clause 160 of the Data Protection Bill (as is the case with claims under Section 13 of the Data Protection Act 1998).  In practice it is likely that the vast majority of claims will be heard in the Sheriff Court given that it is unlikely that any claim will exceed £100,000 and will therefore be within the privitive jurisdiction of the Sheriff Court.  However, with the advent of Group Proceedings (see Section 17 of the Civil Litigation (Expenses and Group Proceedings) (Scotland) Bill [pdf]) it is possible the Article 82 claims will end up the Court of Session as the Bill only provides for a group proceedings procedure in the Court of Session.

Those who process personal data should be aware that the right of a data subject to claim compensation, whether that be under the Data Protection Act 1998, the GDPR or the Data Protection Bill (when it becomes an Act), arising out of a data protection breach is in addition to any enforcement action that the Information Commissioner takes, such as the issuing of an administrative fine.

Alistair Sloan

If you would like to pursue a claim for compensation for a data breach, or if you require to defend such a claim; or if you would like advice and assistance with any other Information Law matter we would be pleased to hear from you. You can contact Alistair Sloan on 0345 450 0123.  Alternatively, you can send him an E-mail.

Data Protection/Privacy Enforcement: September 2017

Following on from last month’s post looking at the Data Protection/Privacy Enforcement taken in August 2017, it is now time to review what data protection/privacy enforcement the ICO publicised during September 2017.

Key Points

The key points from the enforcement action publicised by the ICO during the course of September are:

  • Ensure that where your organisation undertakes direct marketing by telephone, you do not make calls to numbers which are listed on the Telephone Preference Service; unless you have been given consent to make such calls.
  • Before you engage in a marketing campaign by making automated telephone calls, ensure that you have consent from the subscribers to the numbers that you intend to call, whether the numbers are registered with the telephone Preference Service or not.
  • Generally you require the consent of the recipient before you can send marketing materials by electronic means (including text messages and E-mail).
  • It is important that all employees (including agency and temporary staff) have an adequate level of data protection training for their job role and that there is in place ongoing refresher training on a regular basis.
  • If you are an employee and have access to personal data as part of your job role, do not make use of that access for any purposes not required as part of your employment; including for personal purposes.  Also, don’t forward personal data to your personal E-mail, for any reason, unless your employer has agreed to it first.

Enforcement Action published by ICO in August 2017

True Telecom Limited

True Telecom Limited were served with a Monetary Penalty Notice [pdf] in the amount of £85,000 and an Enforcement Notice [pdf] after the Commissioner had found that True Telecom was responsible for 201 unsolicited telephone calls for the purposes of direct marketing made to numbers registered with the Telephone Preference Service, contrary to the requirements of the Privacy and Electronic Communications (EC Directive) Regulations 2003.

Cab Guru Limited

Cab Guru Limited were served with a Monetary Penalty Notice [pdf] in the amount of £45,000 after the Commissioner found that it had instigated the transmission of more than 350,000 text messages for the purposes of direct marketing without having the consent of the intended recipient to do so, contrary to the requirements of the Privacy and Electronic Communications (EC Directive) Regulations 2003.

Your Money Rights Limited

Your Money Rights Limited were served with a Monetary Penalty Notice [pdf] in the amount of £350,000 after the Commissioner found that it had instigated more than 146,000,000 automated marketing calls without having the consent of the subscribers to the number(s), contrary to the requirements of the Privacy and Electronic Communications (EC Directive) Regulations 2003.

Easy Leads Limited

Easy Leads Limited were served with a Monetary Penalty Notice [pdf] in the amount of £208,000 and an Enforcement Notice [pdf] after the Commissioner found that the company had instigated more than 16,500,000 automated marketing telephone calls without having the consent of the subscribers to the numbers, contrary to the requirements of the Privacy and Electronic Communications (EC Directive) Regulations 2003.

Dyfed Powys Police

The Chief Constable of Dyfed Powys Police signed an undertaking [pdf] to ensure compliance with the seventh data protection principle after a number of breach incidents occurred which highlighted that many of the force’s police officers had received no data protection training and that there was no refresher training in place either.  The Commissioner did not take formal enforcement action against Dyfed Powys Police on the basis of remedial actions which had already been taken by the controller.

Prosecutions

A former employee of The University Hospitals of North Midlands NHS Trust was prosecuted at North Staffordshire Magistrates’ Court for an offence under Section 55 of the Data Protection Act 1998. The former employee accessed the sensitive medical records of colleagues as well as people she knew that lived in her locality, without the consent of the data controller. The defendant entered a plea of guilty and was fined £700, ordered to pay costs of £364.08 and a Victim Surcharge in the amount of £70.

A former employee of Leicester City Council was convicted of an offence under Section 55 of the Data Protection Act 1998 at Nuneaton Magistrates’ Court after he unlawfully obtained personal data.  The defendant emailed personal data relating to 349 individuals, which included sensitive personal data of service users of the Adult Social Care Department, to his personal email address without his employers’ consent.  He was fined £160, ordered to pay £364.08 prosecution costs and a victim surcharge in the amount of £20.

Alistair Sloan

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

Ireland: High Court to refer Privacy Shield to the Court of Justice of the European Union

One of the primary requirements of the European Data Protection Framework is that personal data of European citizens must not be transferred to a country which is outside of the European Economic Area unless the country to which the personal data is to be transferred “ensures an adequate level of protection”; this is provided for within Article 25 of the 1995 Data Protection Directive and is given effect to in the UK in the form of the eighth data protection principle in Schedule 1 to the Data Protection Act 1998.

The United States of America has, for some time, been a somewhat contentious destination for personal data of European citizens.  The European Commission and the United States Government sought to assist the flow of personal data between the EU and the US through a scheme called “Safe Harbour”.  This scheme was challenged and in 2015 the Court of Justice of the European Union held that the European Commission’s decision in respect of the “safe harbour” scheme was invalid.

The Court of Justice’s decision on safe harbour came following a request for a preliminary ruling by the Irish High Court.  This followed a complaint to the Irish Data Protection Commissioner by an Austrian citizen, Max Schrems, in respect of Facebook.  Under Facebook’s terms and conditions all of its users in Europe have a relationship with ‘Facebook Ireland’ and as such, it falls to the Irish Data Protection Commissioner to regulate the use of personal data by Facebook.

Following that decision the European Commission and the US negotiated a new scheme, known as “Privacy Shield”.   There has been much debate about whether privacy shield is itself adequate and a challenge, also by Max Schrems, is underway.  The Irish Data Protection Commissioner sought from the Irish High Court a reference to the Court of Justice of the European Union and today the Irish High Court has agreed to make the reference.

The Irish Data Protection Commissioner has, the court decided, identified a number of “well founded concerns” and that the introduction of the Privacy Shield Ombudsman mechanism does not “eliminate” those concerns.

Although this is an Irish case, the outcome of a decision from the Court of Justice of of the European Union could have profound consequences for data controller’s right across the European Union.  In the event that the Court invalidates the privacy shield agreement, data controllers who are reliant upon it will find themselves in a situation where their compliance with data protection laws will be in doubt.

The exact questions which will be referred to the Court of Justice of the European Union by the Irish High Court are yet to be determined and the judge in the case will be addressed by parties on this issue in due course.

This is certainly a case that data controllers (and indeed data subjects) should keep a close eye on.  Data controllers who transfer personal data from the EU to the United States of America should think about reviewing their transfers and assessing whether they would continue to be permitted, within the context of the EU data protection framework, in the event that privacy shield is invalidated by the Court of Justice of the European Union in due course.

Alistair Sloan

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

Subject Access Requests under the GDPR

The right of subject access has been a cornerstone of the Data Protection Act 1998 (“the DPA”).  This is the right that allows individual data subjects to, among other things, receive confirmation from a data controller whether or not the controller is processing their personal data and to obtain copies of that data which is being processed by the data controller.  Under the DPA, data controllers have 40 calendar days in which to respond to a subject access requests and can charge a fee which does not exceed the prescribed limit (which is £10 for most data controllers).

The critical importance of the right of subject access means there is no surprise that the General Data Protection Regulation (“GDPR”), which becomes applicable from 25 May 2018, continues to have in place a right of subject access. The right of subject access is to be found in Article 15 of the GDPR and has been incorporated into Clause 43 of the Data Protection Bill, published by the government earlier this month.  There have been some changes to that right which are designed to make it much more effective for data subjects.  This blog post explores some of the key changes to the right of subject access; however, it is by no means comprehensive.

The first key change to note is the length of time that data controllers will have to comply with a subject access request; this is being reduced from the current 40 calendar days to 30.  Where the data controller has “reasonable doubts as to the identity of an individual making” as subject access request, then they may request the provision of additional information to enable the controller to confirm the identity.  Where such a request is made, Clause 52 of the Data Protection Bill provides that the 30 day period does not begin to be calculated until the day on which that information is provided to the data contoller.  It should be noted though that this does not provide a route to delay the fulfilling of a subject access request; the data controller must have doubts as to the identity of the requester and those doubts must be reasonable.

In terms of fees, there is no provision within the GDPR for a data controller to request a fee for making a subject access request; however, Article 15(3) of the GDPR does permit data controllers to charge a reasonable fee based on administrative costs for providing copies of the personal data being processed beyond the first copy (i.e. the first copy is free).  For subsequent copies, what will be considered a “reasonable fee” remains to be seen.  The Data Protection Bill has supplemented this provision and allows the Secretary of State to set a cap on such fees.  There has not yet been any indication as to whether (a) the Secretary of State will set such a cap; and (b) if so, what that cap will be.

The administrative fines provisions of the GDPR apply to the right of subject access and a failure to comply with the requirements of Article 15 can attract a maximum administrative fine of the greater of €20m or 4% of global turnover.

Data Controllers have sometimes interpreted the right of subject access under Section 7 of DPA as only providing a right to receive copies of the personal data processed, but that is not the case; and it continues to be the case under the GDPR.  Data Controllers should therefore familiarise themselves with the full suite of rights that a data subject has under the heading of subject access; these can be found in Clause 43(2) of the Data Protection Bill or in Article 15 of the GDPR.

There are a number of circumstances in which a data controller can restrict a data subject’s right of subject access.  These are set out in Clause 43(4) of the Data Protection Bill and are:

  • to avoid obstructing an official or legal inquiry, investigation or procedure;
  • avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties;
  • to protect public security;
  • to protect national security

However, where a data controller has restricted the data subject’s right to subject access, the data contoller is required to provide certain information to the data subject in writing and without undue delay.  That information is:

  • that the rights of the data subject have been restricted;
  • the reasons for the restriction;
  • the data subject’s right to make a request to the Information Commissioner to check that the processing is compliant;
  • the data subject’s right to make a complaint to the Information commissioner; and
  • the data subject’s rights to make an application to the court (in Scotland, the Court of Session or the Sheriff Court).

One additional point of note about subject access requests is that the GDPR, in recital 63 and unlike the Data Protection Directive, upon which the Data Protection Act 1998 is based, states that the purpose of the right to subject access is to enable the data subject “to be aware of, and verify, the lawfulness of the processing.”  This may mean that Subject Access Requests may be rejected where they are submitted for other reasons.  Whether the courts will consider Recital 63 as exhaustive as to the purposes for which an individual may exercise their rights of subject access or not remains to be seen.

There is a lot to the right of subject access and there are some key changes which will come into effect on 25 May 2018.  This is a cornerstone of data protection law and data controllers should be attaching substantial weight to compliance as a consequence.

Alistair Sloan

If you would like any advice and assistance on subject access requests, either under the GDPR or the Data Protection Act 1998, or any other Information Law matter; then contact Alistair Sloan on 0345 450 0123.  Alternatively, you can send him an E-mail.

Data Protection/Privacy Enforcement – August 2017

In this blogpost I shall be looking at the enforcement action taken by the Information Commissioner in the fields of data protection and privacy which was publicised during August 2017.  It is hoped that this will become a regular monthly feature on this blog.

Key Points

The key points from the enforcement action publicised by the ICO during the course of August are:

  • Ensure that where your organisation undertakes direct marketing by telephone, you do not make calls to numbers which are listed on the Telephone Preference Service; unless you have been given consent to make such calls.
  • Ensure that contractors who have access to personal data only have access to that personal data which is necessary for the services that they are providing to you.
  • Ensure that you have appropriate technical and organisational measures in places to prevent the unauthorised or unlawful processing of personal data when processing personal data over the internet.
  • Ensure that all of your staff (including temporary and agency staff) are given data protection training which is appropriate to their job role, and to ensure that regular refresher training is undertaken.
  • If you are an employee and have access to personal data as part of your job role, do not make use of that access for any purposes not required as part of your employment; including for personal purposes.

Enforcement Action published by ICO in August 2017

H.P.A.S Limited (trading as Safestyle UK)

H.P.A.S Limited were served with a Monetary Penalty Notice [pdf] in the amount of £70,000 and an Enforcement Notice [pdf] after the Commissioner found that they had made unsolicited direct marketing calls to telephone numbers which were listed on the Telephone Preference Service.

Laura Anderson Limited t/a Virgo Home Improvements

Laura Anderson Limited were served with a Monetary Penalty Notice [PDF] in the amount of £80,000 and an Enforcement Notice [pdf] after the Commissioner found that they had made unsolicited direct marketing calls to telephone numbers which were listed on the Telephone Preference Service.

Home Logic UK Limited

Home Logic UK Limited were served with a Monetary Penalty Notice [pdf] in the amount of £50,000 after the Commissioner found that they had made unsolicited direct marketing calls to telephone numbers which were listed on the Telephone Preference Service.

Talk Talk Telecom Group Plc

Talk Talk Telecom Group Plc were served with a Monetary Penalty Notice [pdf] in the amount of £100,000.  The Commissioner found that they had failed to have in place adequate technical and organisational measures to prevent against the unauthorised or unlawful processing of personal data.  Talk Talk Telecom Group Plc had in place unjustifiably wide-ranging access to personal data by external agents, which put that personal data at risk.

London Borough of Islington

The London Borough of Islington was served with a Monetary Penalty Notice [pdf] in the amount of £70,000.  The Commissioner found that the Borough’s parking enforcement application had design flaws and some of the functionality was misconfigured, allowing for unauthorised access to personal data.

Nottinghamshire County Council

Nottinghamshire County Council was served with a Monetary Penalty Notice [pdf] in the amount of £70,000.  The Commissioner found that the Council had failed to have in place an authentication process for accessing an internet based allocation service for home carers; this left personal data and sensitive personal data exposed on the internet.

Cheshire West and Chester Council

Cheshire West and Chester Council signed an undertaking [pdf] stating that they would take certain steps to ensure compliance with the Data Protection Act 1998.  In particular the Commissioner was concerned that a number of self-reported incidents by the council involved staff who had not received data protection training.

Prosecution

A former employee of Colchester Hospital University NHS Foundation Trust was prosecuted in The Colchester Magistrates’ Court.  The Defendant pleaded guilty to offences under Section 55 of the Data Protection Act 1998.  She had accessed the sensitive health records of friends and people she knew and disclosed some of the personal information she obtained obtained.  She was fined £400 for the offence of obtaining the personal data and £650 for the offence of disclosing the personal data.  She was also required to pay prosecution costs and a victim surcharge.

I can provide advice and assistance on a wide range of information law matters.  If you wish to discuss an information law matter with me then you can contact me on 0345 450 0123 or by completing the form on the contact page of this blog.  Alternatively, you can send me an E-mail directly.

Alistair Sloan