Tag Archives: Direct Marketing

Privacy and Data Protection: director disqualified

In September 2017 the Information Commissioner served a Monetary Penalty Notice on Easyleads Limited in the amount of £260,000 [pdf]; the company was also served with an Enforcement Notice by the Commissioner requiring the company to comply with the terms of the Privacy and Electronic Communications (EC Directive) Regulations 2003 [pdf]. It has since transpired that the company never paid the monetary penalty notice and the Information Commissioner petitioned the court to have the company wound-up. It is not unheard of for monetary penalty notices served by the Commissioner to go unpaid; however, where they do it is often because the company goes into liquidation. A copy of the order winding the company up following the petition by the Information Commissioner [pdf] can be found on the Companies House website.

What is interesting about this case though is an announcement by the Insolvency Service that the Secretary of State had accepted a disqualification undertaking from Shaun Harkin, the director of Easyleads Limited. The effect of the undertaking is to ban Mr. Harkin from “directly or indirectly becoming involved, without the permission of the court, in the promotion, formation or management of a company for six years”.

The announcement from the insolvency Service explains that the reason Mr Harkin is now banned from being a director of a company for 6 years is because he failed to ensure that the company complied with its statutory obligations, specifically that he failed to ensure that the company complied with the requirements of the Privacy and Electronic Communications (EC Directive) Regulations 2003 around undertaking direct marketing by telephone.

This is an important announcement from the Insolvency Service; it demonstrates that the effects of failing to comply with data protection and privacy law can be wide-ranging. There is the potential for directors running companies which fail to comply with data protection and privacy law facing being banned from being involved in the formation or management of companies for a not insignificant period of time. It remains to be seen whether this sort of action becomes much more frequent and it is not something that is directly in the control of the Information Commissioner herself, but if the Insolvency Service is starting to take seriously breaches of data protection and privacy law by companies and looking to disqualify directors (where it can within the parameters of the law) then this is clearly something that those involved in the formation and management of limited companies ought to bear in mind when considering data protection and privacy compliance.

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.

Data Protection/Privacy Enforcement: June 2018

June was exceptionally good weather wise with lots of bright and sunny weather, but the outlook for some data controllers was not so bright or sunny as the Information Commissioner took action againt them for data protection and privacy breaches. Many of the key points arising out of last month’s enforcement action make a regular appearance on this blog. In relation to enforcement of (the now repealed) Data Protection Act 1998, the focus remains heavily on breaches of the seventh data protection principle relating to technical and organisational measures.

Key Points

  • Train, train, train – training is a key aspect of a data controllers ability to reduce the risk of suffering a data breach. Ensuring that all staff receive appropriate training on data protection relevant to their job role upon induction; and regular refresher training thereafter, is a core aspect of ensuring that the organisation has in place adequate organisational measures. It’s also important to ensure that people actually undertake induction and referesher training on offer. It is all very well having lots of well designed and worked-out policies, procedures and training material, but if nobody is being trained on the policies and procedures, then the controller might as well have not made the investment in the first place.
  • Sending bulk E-mails is a high risk activity and extreme care should be taken to ensure that personal data is not inappropriately revealed. The manual entry of E-mail addresses can pose a significant risk; even if there is a well documented procedure to use the Bcc field (and everyone has undergone their induction and refresher training setting out this procedure).
  • The right of subject access is a core right of data subjects and it is therefore important that data controllers have in place adequate procedures to identify, record, track and respond to subject access requests. A failure to comply with a subject access request can result in a data subject making a complaint to the Information Commissioner (who may take enforcement action) or applying to the court for an order forcing the data controller to comply.
  • When conducting direct marketing campaigns by electronic means, make sure that you really do have in place the appropriate consents. Further, if you’re sending something as a service message make sure it really is a service message and not a marketing message dressed up as a service message.
  • If you are making live telephone calls for the purposes of direct marketing you must ensure that you do not make calls to telephone numbers listed with the Telephone Preference Service unless you have clear consent to do so.

Enforcement action published in June 2018

 The British and Foreign Bible Society
The British and Foreign Bible Society was served with a Monetary Penalty Notice in the amount of £100,000 [pdf] after suffering a ransomware attack. This had been possible after a brute-force attack had exploited a vulnerability of a weak password. This gave them access to the Remote Desk Server (which allowed home working). The attackers were therefore able to access personal data. The Commissioner considered that the British and Foreign Bible Society did not have in place adequate organisational and technical measures and as such was in breach of the seventh data protection principle.

Chief Constable of Humberside Police
The Chief Constable of Humberside Police gave an undertaking to the Information Commissioner after loosing interview disks and written notes concerning n allegation of rape [pdf]. Humberside Police had conducted the interviews on behalf of another force. During the course of the Commissioner’s investigation into the data breach, it transpired that training compliance within the force on data protection was only 16.8%. Of the three officers involved in the initial incident, two had received training some years ago and the third had received no training at all.

Chief Constable of Gloucestershire Police
The Chief Constable of Gloucestershire Police was served with a Monetary Penalty Notice in the amount of £80,000 [pdf] after sending a bulk E-mail which identified victims of historic child abuse. In December 2016 an officer sent an update about investigations into allegations of child abuse relating to multiple victims. The officer did not make use of the ‘Bcc’ function and instead entered all of the E-mail addresses into the “to” field thus revealing the E-mail addresses of every recipient to every other.

Ainsworth Lord Estates Limited
Ainsworth Lord Estates Limited was served with an Enforcement Notice after it failed to respond to a Subject Access Request made by a data subject [pdf]. The data subject made a subject access request to the controller and got an out of office response; when they received no response they attempted to engage with the controller, but got no response. When the Commissioner became involved her office attempted to contact the controller, but had no success in receiving a response.

British Telecommunications Plc
British Telecommunications Plc (BT) was served with a Monetary Penalty Notice in the amount of £77,000 [pdf] for breaching the provisions of the Privacy and Electronic Communications (EC Directive) regulations 2003. A complaint was made to the ICO by an individual who had opted out of receiving marketing communications from BT when they received a message from BT promoting its ‘My Donate’ platform. The Commissioner opened an investigation as it appeared the message had been sent to  the whole of BT’s marketing database. BT advised the Commissioner that it considered that the message re ‘My Donate’ was a service message, rather than a marketing message. Two other marketing campaigns took place, which BT accepted were marketing campaigns and argued that they had complied with the requirements of PECR by only sending it to those who had opted-in; BT purported to also reply upon the ‘soft opt-in’. The Commissioner found that in relation to all three campaigns, BT had failed to comply with Regulation 22 of PECR.

Our Vault Limited
Our Vault Limited was served with an Enforcement Notice [pdf] and also with a Monetary Penalty Notice in the amount of £70,000 [pdf] after it failed to comply with the provisions of PECR. The company made live telephone calls for the purposes of marketing the products of a third party company (under the guise of conducting lifestyle research); including to numbers that were listed with the Telephone Preference Service where they did not have the consent of the subscriber to do so, contrary to Regulation 21 of PECR.

Horizon Windows Limited
Horizon Windows Limited was served with an Enforcement Notice after it failed to comply with the provisions of Regulation 21 of PECR [pdf]. In this case complaints continued to be received by the Commissioner during the course of her offices’ investigation.

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.

Data Protection/Privacy Enforcement: May 2018

May saw the long awaited General Data Protection Regulation coming into force, but it will be a while yet before we begin to see regulatory enforcement action taken under the GDPR and the associated Data Protection Act 2018 being taken. In May there was, as is normal, a steady stream of enforcement action against data controllers published by the Information Commissioner’s Office. It is once again time to take our monthly look at what breaches the Commissioner has taken enforcement action in relation to and what data controllers and their staff can learn from it.

Key Points

  • This is a frequent message of these monthly reviews, but it is important to ensure that you screen telephone numbers you are intending to call as part of a marketing campaign against the list maintained by the Telephone Preference Service. If you have, and can demonstrate that you have, consent to do so; you can call a number that is listed with the Telephone Preference Service.
  • When undertaking direct marketing by telephone you must identify the caller; if you are making the call on behalf of a third party then you must also identify the third party. It is not permissible to hide, obscure or refuse to provide the identity of the caller or their principal.
  • If you are obtaining personal data from a third party organisation for the purposes of direct marketing, you should ensure that you conduct your own due diligence checks to ensure that the appropriate consents are in fact in place.
  • When drafting privacy notices, when setting out to who you will be passing personal data onto for the purposes of direct marketing you need to be fairly specific. It is not sufficient to simply put “selected partners” or phrases that are similarly generic.
  • When sending personal data or sensitive personal data, even to other sites within your own company, it is important to ensure that you have in place adequate technical and organisational measures. Encrypting CDs and memory sticks is easy and cheap to do and therefore should be done whenever sending personal data outside the organisation on such media.
  • You should ensure that when updating the security of your websites and servers that you look at all aspects of your website and severs, including microsites and sub-domains, to ensure that you are taking appropriate precautions to secure the websites and servers.
  • When storing personal data offsite you should ensure that you take steps to keep that personal data safe and secure; off-site storage may not be visited as regularly by staff as your on-site storage and so this should be taken into consideration. When vacating a premises it is important to ensure that you systematically check the premises to ensure that all personal data has been removed from the site – you should be able to evidence your plan and that it was followed.
  • If you’re processing personal data within the European Union which concerns a data subject resident oustide of the European Union then you may be required to comply with a subject access request received from teh data subject.

Enforcement action published in May 2018

IAG Nationwide Limited
IAG Nationwide Limited was served with both an Enforcement Notice [pdf] and a Monetary Penalty Notice in the amount of £100,000. [pdf] IAG Nationwide Limited is an advertising/marketing agency. IAG Nationwide Limited made telephone calls to numbers which were listed with the Telephone Preference Service (TPS) and continued to make such calls even after complaints had been raised with the TPS.  This was a contravention of Regulation 21 of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). IAG Nationwide Limited also failed to properly identify itself to those who it called which was a contravention of Regulation 24 of PECR. Indeed, when the Commissioner’s staff contacted the company by telephone they refused to provide its address and only provided an E-mail address which was unregistered and available for sale.

Costelloe and Kelly Limited
Costelloe and Kelly Limited were served a Monetary Penalty Notice in the amount of £19,000 [pdf] after it undertook a direct marketing campaign by text message in a way that contravened Regulation 22 of PECR. The company instigated the transmission of approximately 283,500 test messages promoting products without having in place proper consent to do so. The company had relied upon a list supplied to it by a data provider which said that it had obtained consent for the purposes of direct marketing by text messages. Cotselloe and Kelly Limited conducted little or no due diligence itself to ensure appropriate consent. The consent obtained by its data provider was insufficient as it referred only to providing details to its “partners” and other generic descriptions when getting people to “opt-in”.

SCL Elections Limited
SCL Elections Limited was served with an Enforcement Notice requiring it to comply with a Subject Access Request made to it by a data subject [pdf]. SCL Elections Limited provided some information, for and on behalf of Cambridge Analytica. The data subject was not satisfied with the response and made a request for assessment to the Commissioner. In response, SCL Elections Limited asserted that the data subject had no right to make a subject access request nor a request for assessment to the commissioner as the data subject was a US rather than a UK citizen. The Commissioner disagreed and found that SCL Elections had not fully complied with its obligations.

Crown Prosecution Service
The Crown Prosecution Service (CPS) was served with its second Monetary Penalty Notice for a failure to comply with the seventh data protection principle [pdf]. In November 2016 the CPS received from Surrey Police 15 unencrypted DVDs from Surrey Police. The DCDs contained interviews with alleged victims of child sexual abuse. The DVDs received by the CPS were copies; the originals being maintained by Surrey Police. The DVDs were sent by tracked DX delivery to another CPS office to be examined by specialists and were noted to have been delivered before 7 in the morning. The DVDs were likely to have been left in a reception area where individuals not employed by the CPS could have had access to the package. The CPS could not locate the packages. They therefore did not have in place adequate technical and organisational measures.

The University of Greenwich
The University of Greenwich was served a monetary penalty notice in the amount of £120,000 [pdf] after a breach of security resulted in the personal data of approximately 19,500 individuals being extracted by an authorised attacker. The personal data included sensitive personal data in relation to 3,500 individuals. The attacker posted the personal data on a third party website. The commissioner found that the university had failed to have in place adequate technical and organisational measures to ensure that, so far as was possible, the security breach which occurred did not happen and thus contravened the seventh data protection principle.

Bayswater Medical Centre
Bayswater Medical Centre was served a monetary penalty notice in the amount of £35,000 [pdf] after it left sensitive personal data in an empty premises. The practice had operated from two sites, but merged down to one retaining the second as a storage facility. Another GP practice sought to take over the lease and the Bayswater Medical Centre provided the second GP practice with a set of keys. On numerous occasions the second practice notified Bayswater medical Centre of the presence of the medical centres patient records which were unsecured. Bayswater Medical Centre did nothing to rectify the situation, including failing to remove the records from the premises when the new practice requested them to uplift the records. The Commissioner found that the Medical Centre had failed to comply with the requirements of the seventh data protection principle.

Prosecutions
A limited company and its director have been prosecuted by the Information Commissioner’s Office for failing to comply with an Information Notice. The Information notices were issued in October 2017 and both failed to respond to the notices. The company was fined £1,000 and ordered to pay a £100 victim surcharge while the director was fined £325 and ordered to pay a victim surcharge of £32. The director was also ordered to pay £364.08 in prosecution costs.

A former recruitment consultant was successfully prosecuted by the Information Commissioner’s Office after he illegally obtained personal data. The defendant set up his own recruitment consultancy and left his former employer’s employment. When he left the defendant took 272 CVs from his former employers’ database without consent. He admitted an offence of unlawfully obtaining personal data under section 55 of the Data Protection Act 1998.  He was fined £355 and ordered to pay £35 victim surcharge and £700 prosecution costs by Exeter Magistrate’s Court.

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.

 

Data Protection/Privacy Enforcement: April 2018

In April the Information Commissioner’s Office published a number of enforcement measures taken against public and private organisations under both the Data Protection Act 1998 (“DPA”) and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”).  The key points to draw from the enforcement action this month should be familiar to anyone who has been reading this series of blog posts since it began in September.

Key Points

  • It is important to keep track of personal data, especially when it is sensitive personal data; if it is to be sent out of the organisation ensure that it is properly secured and that a record of it being sent and received is kept.
  • Before sending out information to your customers it is important to consider whether the information you are sending is properly business information (or information you’re required to give by law), or whether it is actually promotional or marketing material. If it’s promotional or marketing material ensure that you only send it to the E-mail addresses of people who have consented to receive promotional or marketing material from you.
  • Make sure that before you conduct a marketing campaign by telephone that you do not include numbers listed with the TPS unless you have the consent of the subscriber to contact them by phone for the purposes of direct marketing.
  • When disclosing information to someone, whether under FOI laws or not, ensure that you do not accidently disclose personal or sensitive personal data of third parties where you do not have legal grounds to do so. Be especially careful with pivot tables, a number of public authorities shave found themselves in regulatory hot water of the use of pivot tables. The ICO produced a helpful blog post in 2013 on the issue of pivot tables.
  • If you are an employee it is important that you remember that you should only be accessing personal data where you have a proper business need to do so and should only be disclosing personal data where you need to do so in order to properly perform your role. You can be held personally liable and find yourself being prosecuted in the criminal courts.

Enforcement action published by the ICO in April 2018

Humberside Police
The Information Commissioner, exercising her powers under section 55A of the DPA, served a Monetary Penalty Notice in the amount of £130,000 [pdf] for breaches of the DPA.  The force conducted an interview of a person alleging that they had been the victim of rape, on behalf of Cleveland Police. The interview was filmed and three copies of it existed: the master and two copies. The discs were unencrypted. They were to be sent to Cleveland Police, but were never received by Cleveland police. Humberside Police were unable to locate the discs or to confirm whether they had ever been posted to Cleveland Police.  The Commissioner found that Humberside Police had failed to comply with the seventh data protection principle and also paragraph 9 of Schedule 1 to the DPA.

Royal Mail Group Limited
The Information Commissioner served a Monetary Penalty Notice on Royal Mail Group Limited for contravening Regulation 22 of PECR.  The Monetary Penalty Notice was in the amount of £12,000 [pdf]. Royal Mail Group is the designated Universal Postal Service Provider in the UK and as such, it has certain statutory responsibilities to disseminate certain information. Royal Mail Group Limited sent E-mails to all of its customers, including those who had opted not to receive electronic marketing, to notify them of a change in price for second class parcels purchased online.  The price change was described as being a “promotional” one. The Commissioner found that this amounted to direct marketing rather than information that Royal Mail was obliged to provide under the Postal Services Act 2011 and was therefore in contravention of Regulation 22 of PECR.

The Royal Borough of Kensington and Chelsea
The Information Commissioner served a monetary penalty notice on the Royal Borough of Kensington and Chelsea in the amount of £130,000 [pdf] for breaches of the DPA. The breach arose out of a request for information made to the council pursuant to the Freedom of Information Act 2000. The Council answered the request for information by providing a pivot table to the requesters. The council did not properly redact the underlying information which was then accessible to the requesters without too much difficulty; the underlying information included personal data.

The Energy Saving Centre Limited
The Information Commissioner has served the Energy Saving Centre Limited with a Monetary Penalty Notice in the amount of £250,000 [pdf] and also with an Enforcement Notice [pdf] for contraventions of PECR.  The Commissioner had found that the Energy Saving Centre Limited had made tens of thousands of marketing calls to numbers which were listed with the Telephone Preference Service and where the individual subscribers to those numbers had not given consent to the Energy Saving Centre Limited to be contacted by phone for marketing purposes.  The Enforcement Notice requires the company to stop making unlawful calls – failure to comply with an Enforcement Notice is a criminal offence.

Approved Green Energy Solutions
The Information Commissioner has served a Monetary Penalty Notice [pdf] on an individual who traded as a sole trader under the name Approved Green Energy Solutions.  The amount of the penalty was £150,000. Approved Green Energy Solutions used a public telecommunications service to make in excess of 330,000 unsolicited telephone calls for the purpose of direct marketing where the line subscriber had listed their number with the Telephone Preference Service (“TPS”). The Commissioner and the TPS received 107 complaints directly from individuals affected.

Prosecutions
A former receptionist/general assistant at Milton Keynes University Hospital NHS Foundation Trust has bene prosecuted by the Information Commissioner after she inappropriately accessed the records of 12 patients when not required to do so in the course of her employment. The defendant entered a plea of guilty to offences of unlawfully accessing personal data and unlawfully disclosing personal data in breach of section 55 of the DPA. The Defendant was fined a total of £300 and ordered to pay a £30 victim surcharge.

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.

Data Protection/Privacy Enforcement: March 2018

Probably the most high profile piece of enforcement action taken by the Information Commissioner’s Office in March was its application for, and execution of, a warrant to enter and inspect the offices occupied by Cambridge Analytica as part of the Commissioner’s wider investigation into the use of personal data in politics.  It would seem that data protection warrants get more people excited about data protection than would ordinarily be the case. The Cambridge Analytica warrant was not the only warrant that the Commissioner obtained and executed in March; the Commissioner’s website also published details of a warrant that it executed in Clydebank (Glasgow).  This warrant was directed towards alleged breaches of the Privacy and Electronic Communications (EC Directive) Regulations 2003 which deal with, insofar as this blog is concerned with, the rules concerning direct marketing to individuals by electronic means.

Key Points

  • Care needs to be taken when looking at sharing personal data on a controller-to-controller basis with other companies, including separate companies within the same group of companies. Data controllers need to ensure that they identify what their lawful basis for processing is, provide adequate fair processing information to data subjects in relation to such sharing of personal data and ensure that any changes to their policy in respect of data-sharing do not result in that sharing being for a purpose that is incompatible with those stated at the time of collection.
  • If you, as an individual (whether or not you are yourself a data controller), unlawfully disclose personal data to third parties then you could be liable for prosecution.

Enforcement Action published by the ICO during March 2018

WhatsApp Inc.
An undertaking was given by WhatsApp Inc. In it, WhatsApp undertook not to do a number of things; including not transferring personal data concerning users within the EU to another Facebook-controlled company on a controller-to-controller basis until the General Data Protection Regulation becomes applicable on 25th May 2018.  The undertaking was given after WhatsApp introduced new terms and conditions and a new privacy policy which affected how it processed personal data held by it; in particular, how it would now share personal data with other Facebook-controlled companies.

Prosecutions
A former housing worker was convicted at St. Albans Crown Court after he shared a confidential report identifying a potential vulnerable victim. The defendant was convicted of three charges of unlawfully obtaining disclosing personal data contrary to section 55 of the Data Protection Act 1998.  He was fined £200 for each charge and was ordered to pay £3,500 in costs.

Alistair Sloan

Should you require advice or assistance about UK Data Protection and Privacy law then contact Alistair Sloan on 0141 229 0880.  You can also contact him by E-mail.  You can also follow our dedicated Twitter account covering all Information Law matters@UKInfoLaw

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.

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.

 

PECR: The forgotten relative

Much of the focus in relation to data protection and privacy law is on implementation of the Genera Data Protection Regulation, which becomes applicable from 25 May 2018.  However, many of the discussions that are taking place in respect of GDPR implementation are forgetting the GDPR’s older cousin:  the snappily named Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).  This Directive from the European Union dating from 2002 was implemented in the United Kingdom through the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”).

 The Directive on privacy and electronic communications is concerned with the processing of personal data and the protection of privacy in the electronic communications sector and is of importance to telecommunications providers, Internet Service Providers and any person or organisation who conducts direct marketing by electronic means; however, this blog post is concerned only with direct marketing and is a follow-up to my recent blog post on whether consent is required under the GDPR.

The GDPR might be the big thing at the moment, but it is important not to consider it in isolation.  When thinking about GDPR implementation it is necessary to take a holistic view and think about how it interacts with other laws because these other laws don’t stop having effect just because of the GDPR.  Therefore, it is essential to consider how these other laws affect your GDPR implementation.

The rules on direct marketing by electronic means are relatively simple and straightforward, but this does not stop unlawful behaviour from taking place on an industrial scale.  Rarely does a month go past without the Information Commissioner’s Office publishing information on enforcement action it has taken against businesses arising out of failing to comply with PECR, especially since the law changed to lower the legal threshold for Monetary Penalty Notices in relation to PECR infringements.

Electronic Mail
Electronic Mail includes E-mail and SMS text messaging.  The general rule for direct marketing by electronic mail is that you need consent, as defined by the 1995 Data Protection Directive.  This means that you must have a freely given, specific and informed indication that the person to whom you are directing the marketing wants to receive such marketing.

There is an exception to this which is referred to as the “soft opt-in”.  This applies where you have obtained a person’s personal data “in the course of the sale or negotiations for the sale of a product or service” to them.  You can then send direct marketing to this person, without first gaining their express consent, where you are marketing your own similar products or services.  The data subject must be “given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected”.

Each direct marketing communication that is sent must include a simple means of opt-out of further direct marketing content (and this must be free of charge, except for the costs of transmission of the opt-out).

Telephone:  Automated calls
The rules for direct marketing by telephone are split into automated and unsolicited live telesales calls.  In the case of automated calls with recorded information played when the phone line being called is answered, the subscriber (i.e. the person who has contracted with the telephone service provider) must have notified the caller (or the person instigating the call where the caller is a third party acting on behalf of the instigator) that, for the time being, they consent to receiving such calls.  Again, this requires there to be a freely given, specific and informed indication.  Consent can be withdrawn.

Telephone:  Unsolicited live telesales calls
You do not require consent to make such calls; however, you must not make such calls where the subscriber has notified you that they do not wish to receive such calls, or if the number is registered with the Telephone Preference Service (TPS).  You can call numbers registered with the TPS where the subscriber has consented to receiving calls from you, notwithstanding that the number is registered with the TPS.  Consent can, as always, be withdrawn at a later date.

Fax
Yes, it is still a thing and some people (and indeed whole sectors) still use fax machines.  However, as it is more or less an obsolete technology all I will say on the matter is that PECR regulates the use of fax for direct marketing and the relevant parts are Regulations 20 and 25.

That is a very brief run through of the relevant law as it stands today.  However, a couple of points to note in closing:  Firstly, the EU is currently working on a replacement to the current Directive.  It had been anticipated that the new E-Privacy Regulation would be implemented alongside the GDPR, but work started on it too late and so it won’t.  Whether it will be finalised in and in force prior to Brexit is something that we will need to wait and see.  Secondly, depending on what happens with the Brexit negotiations it may still end up being part of UK law even if it comes into force after the UK leaves the EU.  Thirdly, there is likely to be some temporary adjustments to PECR from 25 May 2018, that is because PECR adopts a lot of definitions from the Data Protection Act 1998 and the 1995 Data Protection Directive (both of which will be repealed on 25 May 2018).  Finally, the domestic Regulations were made under the European Communities Act 1972; therefore the European Union (Withdrawal) Bill may well have some impact upon them.

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: November 2017

A bit later than normal, it is time for our monthly review of the enforcement action taken by the Information Commissioner in respect of Privacy and Data Protection matters during the month of November 2017.  This follows on from our reviews covering September 2017 and October 2017.

Key Points

  • Ensure that when you are collecting personal data that you are clear and open about what it will be used for.  If it is to be supplied to third parties for direct marketing purposes state as accurately as possible who those third parties are –  stating that it will be shared with “carefully selected partners” is not going to be sufficient.
  • When undertaking direct marketing by electronic means, such as by E-mail or text message, ensure that you have in place the necessary consent (and remember the definition of consent in the Data Protection Directive) of the recipient before sending your marketing messages.
  • Once again, if you have access to personal data as part of your employment, ensure that you only access it where there is a legitimate business need for you to do so.  Do not send personal data to your own personal E-mail address without first explaining to your employer why you need to do it and getting their consent to do so.

Enforcement action published by the ICO in November 2017

Verso Group (UK) Limited

Verso Group (UK) Limited was served with a Monetary Penalty Notice [pdf] in the amount of £80,000.  Verso had been supplying personal data to third parties to enable those third parties to conduct direct marketing campaigns; the Commissioner considered that Verso had breached the First Data Protection Principle in doing so.  This was because the Commissioner did not consider that the terms and conditions and privacy policies of Verso and those other companies from which it obtained personal data were clear enough to make the processing by Verso fair and lawful.

Hamilton Digital Solutions Limited

Hamilton Digital Solutions Limited were served with an Enforcement Notice [pdf] and a Monetary Penalty Notice [pdf] in the amount of £45,000 after the company were responsible for the sending of in excess of 150,000 text messages for the purposes of direct marketing in breach of the Privacy and Electronic Communications (EC Directive) Regulations 2003.

Prosecutions

There were a number of successful prosecutions reported by the ICO during the month of November 2017:

Prosecution 1 –
A former employee of a community based counselling charity was prosecuted by the ICO at Preston Crown Court and pleaded guilty to three charges under Section 55 of the Data Protection Act 1998.  The Defendant had sent a number of E-mails to his personal E-mail address which contained sensitive personal data of clients, without his employers’ consent.  He was given a 2 year Conditional Discharge, ordered to pay costs of £1,845.25 and a £15 Victim Surcharge.

Prosecution 2 –
An employee of Dudley Group NHS Trust pleaded guilty two offences under Section 55 of the Data Protection Act 1998:  one of unlawfully obtaining personal data and one of unlawfully disclosing personal data.  The defendant had accessed the medical records of a neighbour and former friend medical records and also disclosed information about a baby.  She was fined a total of £250 (£125 for each offence) and was ordered to pay prosecution costs amounting to £500 and a victim surcharge of £30.

Prosecution 3 –
A former nursing auxiliary at the Royal Gwent Hospital in Newport was fined £232 for offences under Section 55 of the Data Protection Act 1998.  She was also ordered to pay prosecution costs of £150 and a victim surcharge of £30.  The Defendant had unlawfully accessed the records of a patient who was also her neighbour

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 him an E-mail directly.