Tag Archives: Information Commissioner

Data Protection Officers under the GDPR

Many data controllers already have people within their organisation who are referred to as “Data Protection Officers”.  Currently, people with the job title of “Data Protection Officer” can be senior members of staff, or (more often) quite junior members of staff, and their job roles can vary quite considerably from organisation to organisation.  Under the current data protection framework within the UK there is no formal concept of a Data Protection Officer, but that will all change in May 2018 when the General Data Protection Regulation becomes applicable.

The Data Protection Officer

The Data Protection Officer, or DPO, is a specific concept within the GDPR.  All public bodies will be required to appoint a DPO (with one exception, on which see further on) as will many private sector organisations.  The DPO is a key person within the new data protection framework and organisations should avoid giving people who are not a DPO within the context of the GDPR job titles which could be misleading.

The DPO should operate at a senior level and be able to feed into the highest level of the organisation.  The DPO should be a person with expert knowledge of data protection law and practices and should assist the controller or processor to monitor internal compliance with the GDPR.  The DPO can be a full-time or part-time member of staff, but can also be provided by a third party in terms of a service contract.

Where a DPO has been appointed, the data controller is required to publish the name and contact details for their DPO.

When does a Data Protection Officer require to be appointed?

All public authorities, regardless of size, (and with the exception of courts acting in their judicial capacity) will be required to appoint a DPO under the GDPR.  The GDPR does not define what is meant by “public authority or body” and this will largely be left up to national laws to determine.  It would be fair to say that in the UK any organisation that is deemed to be a public authority for the purposes of the Freedom of Information Act 2000 or a Scottish public authority for the purposes of the Freedom of Information (Scotland) Act 2002 will be considered as a public authority or body.

It is also probable that private companies who carry out functions of a public administrative nature will also be considered as a public authority or body and so the definition of public authority for the purposes of the Environmental Information Regulations 2004 and the Environmental Information (Scotland) Regulations 2004 should also be considered.

As already noted, the requirement to appoint a DPO is not simply confined to public authorities; private sector organisations will also be required to appoint a DPO if they meet certain criteria.  Private sector organisations (whether they are a data controller or a data processor – references to data controller in this blog post should be taken to include data processors) will need to appoint a DPO where their core activities consist of processing operations which require regular and systematic monitoring of data subjects on a large scale.

Finally, any data controller whose core activities consist of processing, on a large scale (which is yet to be properly defined), special categories of data or personal data relating to criminal convictions and  offences.  Special categories of personal data broadly corresponds with what the Data Protection Act 1998 describes as “sensitive personal data”, which includes personal data such as race, religion, political beliefs, health data etc.

What this means is that there is likely to be a requirement on a large number of private sector organisations to appoint a DPO.

The tasks of the Data Protection Officer

The GDPR sets out various tasks that Data Protection Officers will be required to carry out; these are:

  • to inform and advise the controller or the processor and the employees who are
    processing personal data of their obligations pursuant to the GDPR;
  • to monitor compliance with the GDPR, including the assignment of responsibilities, awareness- raising and training of staff involved in the processing operations, and the related audits;
  • to provide advice where requested as regards the data protection impact assessment and monitor its performance pursuant to Article 35
  • to co-operate with the Information Commissioner as the supervisory authority
  • to act as the contact point for the supervisory authority on issues related to the processing of personal data

Data Protection Officers must be able to carry out their functions independently and must also be given sufficient resources to enable to them fulfill their obligations (for larger organisations, this is may include, for example, having a staff to assist them).  The requirement for them to conduct their responsibilities independently means that they should not be subject to direction on the performance of their responsibilities by anyone in the organisation and should not be treated unfairly for discharging their duties (e.g. they shouldn’t be side-lined or dismissed if they give an opinion that isn’t appreciated).

There is no obligation within the GDPR for an organisation to do what their DPO advises them to do; however, the accountability principle in the GDPR will mean that the ICO will likely want an explanation as to why an organisation has gone against the advice of their DPO if that is what they decide to do.

It is for each data controller and processor to decide whether or not they require to appoint a DPO; however, the accountability principle of the GDPR will mean that organisations who have decided they do not require a DPO should be able to demonstrate how and why they came to that decision. Organisations that are not required to appoint a DPO under the GDPR can still appoint one if they wish, but persons who are “electively” appointed as a DPO will be viewed in exactly the same way as those whose appointment is mandatory.

Core Activities

What constitutes and organisation’s core activities is not specifically defined within the GDPR.  However, Recital 97 of the GDPR states that in the private sector, the “primary activities [of the controller] and do not relate to the processing of personal data as ancillary activities”.  The Recital is not part of the law, but is a tool which assists with the inetrpretation of the law.  Oragnisations will need to be clear as to what their “primary activities” are in order to be able to work out whether processing personal data is one of their “core activities”.

The Article 29 Woking Party, in its Guidelines on Data Protection Officers expresses it in the following way:

“Core activities’ can be considered as the key operations to achieve the controller’s or processor’s objectives. These also include all activities where the processing of data forms as inextricable part of the controller’s or processor’s activity. For example, processing health data, such as patient’s health records, should be considered as one of any hospital’s core activities and hospitals must therefore designate DPOs.

On the other hand, all organisations carry out certain supporting activities, for example, paying their employees or having standard IT support activities. These are examples of necessary support functions for the organisation’s core activity or main business. Even though these activities are necessary or essential, they are usually considered ancillary functions rather than the core activity.”

Large Scale Processing

As noted above, the GDPR does not define what is meant by large scale processing activities.  In its guidelines on Data Protection Officer, the Article 29 Working Party has suggested four factors which should be taken into consideration when decideing whether processing is taking place on a large scale.  Those factors are:

  1. the number of data subjects concerned – either as a specific number or as a proportion of the relevant population;
  2. the volume of data and/or the range of different data items being processed;
  3. the duration, or permanence, of the data processing activity;
  4. the geographical extent of the processing activity

As the phrase remains underfined within the GDPR it is a matter that will require a level of judicial interpretation.  No doubt the domestic courts will be asked to grapple with the concept of large-scale processing at somepoint; as will the Court of Justice of the European Union (although, what impact a decision of the court will have in the UK given Brexit is a matter that remains to be seen).

Penalties

A failure to appoint a DPO where one is required is a matter which can attarct an administrative fine; in this case the maximum is €10m or 2% of global turnover (which ever is greater).  I have covered administrative fines in more detail in another blog post.  Articles 38 and 39 of the GDPR, which relate to the position of the DPO and their tasks, are also subject to the administartive fine provisions; again with the maximum being €10m or 2% of global turnover (whichever is greater).

Alistair Sloan

If you would like advice on Data Protection Officers under the GDPR, or on any other matter relating to data protection/privacy or Freedom of Information, then you can contact Alistair Sloan on 0345 450 0123, by completing the contact form on this blog, or you can send him an E-mail directly.

Administrative Fines and the GDPR

Since 2010 the Information Commissioner has had the power to impose a Monetary Penalty Notice in respect of certain breaches of the Data Protection Act 1998 (“the DPA”), and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”).  In 2015 I undertook a Master of Laws degree and my dissertation looked at how the Commissioner had used the power to serve these penalties, but only in relation to breaches of the DPA.  What became clear from my research was that the Commissioner tended to focus on breaches of the seventh data protection principle (which relates to having in place sufficient technical and organisational measures).  However, the Commissioner’s enforcement team have been even more active in issuing monetary penalties for breaches of PECR.  You can see examples of the types of DPA and PECR breaches that can result in the Commissioner serving a Monetary Penalty Notice in my blog post on Data Protection/Privacy Enforcement from August 2017.

The GDPR also includes provisions for financial penalties, which it terms as “administrative fines”, for certain breaches of the Regulation.  For some breaches the maximum penalty is €10m or 2% of global turnover (whichever is the greater); while for others the maximum penalty is €20m or 4% of global turnover (whichever is the greater).  These penalties are far greater than the maximum penalty currently available to the Commissioner, which I fixed at £500,000.  Of course, while the maximum penalties prescribed in the GDPR are in Euros, the UK does not use the Euro as its currency.  The recent Statement of Intent [pdf] from the UK Government (published in August 2017) suggests that the equivalent will be £17m where the GDPR sets a maximum of €20m.  The Government is expected to publish a Data Protection Bill later this month; once it does, we may become more enlightened about how the UK Government intends on converting the maximum penalties from Euros to Pounds Sterling.

Over the last year or so, there have been numerous articles published which focus on the high level of the administrative fines which will be available to the Commissioner.  At this stage it is far too early to tell exactly how the Commissioner will make use of her greatly extended powers; however, looking at how the current powers have been used may well cast some light onto the future.  It is probably fairly unlikely that the ICO will radically change how they have been enforcing data protection law upon the GDPR becoming effective (at least not immediately anyway).  Indeed, the Commissioner herself has published a blog post on the ICO’s blog seeking squash the idea that her office will be rushing to issue crippling financial penalties to errant data controllers.

The consistency mechanism within the GDPR, when having reference to Recital 150, may be used to ensure that there is a consistent approach taken across Member States in the application of administrative fines.  This may well mean that, over time, a more consistent approach to financial penalties may develop across supervisory authorites.  What impact this will have in the UK remains to be seen, given that developing a consistent approach, if indeed that is what happens, will take time; the UK is on course to leave the European Union a little under 12 months after the GDPR becomes applicable.

As I noted above, insofar as the DPA is concerned, much of the Commissioner’s use of monetary penalties has been in relation to breaches of the seventh data protection principle.  Where monetary penalties have been issued, common features have been a failure to have in place adequate policies and procedures; a failure to ensure the staff have been adequately trained in the organisation’s policies and procedures; and a failure to have in place adequate security (especially encryption).

The seventh data protection principle has survived, and is now to be found in Article 5(1)(f) of the GDPR.  Article 5(1)(f) reads: “processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures”.  In GDPR language it is the ‘integrity and confidentiality’ principle; a failure to comply with this basic principle of processing is one of the breaches that can result in a maximum administrative fine of €20m or 4% of global turnover (whichever is the greater).

Given that the Commissioner (and her predecessor) has historically taken action for breaches of the seventh data protection principle (including, but not limited to, the imposition of financial penalties); a reasonable assumption to make is that she will enforce against breaches of the integrity and confidentiality principle.  Therefore, if an oragnisation is found to have breached the integrity and confidentiality principle, and one of the common contributory factors mentioned above are presents; they should consider that an administrative fine is a real possibility (but not necessarily an inevitability).

What is impossible to tell at the moment is the level of the administrative fines that the ICO will issue; although, it is unlikely that there will be a tectonic shift in the size of penalties issued by the Commissioner.  The ICO has traditionally taken into account the organisation’s financial resources when fixing the financial penalty and it is likely that this will continue; indeed Recital 150 of the GDPR states that the supervisory authority should take into account the “economic situation of the person in considering the appropriate amount of the fine.” However, the GDPR does require the ICO to ensure that the imposition of administrative fines in respect of infringements of the Regulation shall, in each individual case, be effective, proportionate and dissuasive.

Recital 148 of the GDPR does state that “in a case of a minor infringement or if the fine likely to be imposed would constitute a disproportionate burden to a natural person, a reprimand may be issued instead of a fine.”  The Recital continues by stating that:

 “due regard should be given to the nature, gravity and duration of the infringement, the intentional character of the infringement, actions taken to mitigate the damage suffered, degree of responsibility or any relevant previous infringements, the manner in which the infringement became known to the supervisory authority, compliance with measures ordered against the controller or processor, adherence to a code of conduct and any other aggravating or mitigating factor.” 

There will therefore need to be a balancing exercise undertaken by the ICO to find the right level of fine in each case (in the same way as is done today).

There may be some small increase in the level of penalties being issued by the ICO from May 2018, but it is unlikely that we will begin to see financial penalties much larger than those that we are seeing today (not immediately anyway).  The Article 29 Working Party and the ICO will no doubt issue guidance on administrative fines in due course and once we see that guidance we might have a better idea as to how the administrative fines will operate in practice.

Alistair Sloan

If you have a data protection/privacy matter which you would like to discuss, then you can contact Alistair Sloan on 0345 450 0123; or you can complete the contact form on this blog.  Alternatively, you can send him an E-mail directly.

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