A piece by me on the Mishcon de Reya website on yesterday’s news that the Data Protection and Digital Information Bill has been paused
https://www.mishcon.com/news/data-protection-reform-progress-paused
Author Archives: Jon Baines
Breaking the code
Bletchley Park’s use of adtech means you can’t opt out of non-essential cookies and still access the website
I found this ironically sad.
Visit Bletchley Park’s website and one is presented with a cookie banner. If you’re like me you will deselect all but essential cookies – so no “preferences”, “statistics” or “marketing”
Regulation 6 of the Privacy and Electronic Marketing (EC Directive) Regulations 2003 (PECR) is behind this.
As much as one might find cookie banners annoying, they are a result of cookies being inherently intrusive. They are code placed on one’s terminal equipment; sometimes they are essential for a website’s functioning (in which case they can be placed without consent) and sometimes they are merely useful (but not essential) for the user or the operator – perhaps to get analytics, or remember preferences, or deliver targeted advertising (in which case user consent is required).
The problem with the Bletchley site is that if one refuses “non-essential” cookies (I tried on Edge, Chrome and Safari mobile), they turn out to be rather essential, because what one is left is this
I only spent a few minutes trying to work out if it was some clever puzzle you had to crack to gain access before I realised it was just poor configuration.
So, in fact, the non-essential cookies are actually essential.
I’m sure someone with some expertise in code can sort it out. It can’t be beyond the wit of those running Bletchley Park to configure a website so that it functions properly without interfering with visitors’ computers.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
Filed under adtech, cookies, not-entirely-serious, PECR
ICO investigates collection of barristers’ names
News from the Mishcon de Reya website on data protection concerns arising from criminal barristers’ dispute with the MoJ
OMG – OCG attacks HMRC
ICO declines to take action after 1000 HMRC customer records apparently altered in 2020 by Organised Crime Gang and used to make fraudulent claims
Rather hidden away on the Information Commissioner’s Office (ICO) website is information, disclosed under the Freedom of Information Act 2000 (FOIA), in relation to an ICO investigation of a security incident involving HMRC, and an organised crime gang (OCG).
It appears that, in June 2020, an OCG had used 193 genuine National Insurance Numbers (NINOs) which it had managed to “hijack” (it is not clear how) from external sources, and set up bogus Government Gateway (GG) accounts. This subsequently “enabled the OCG to carry out enrolments on the bogus GG accounts of genuine Self-Assessment customer Unique Tax References”, which in turn enabled the submission of fraudulent tax returns with the aim of the OCG being to make fraudulent expenses claims.
It was also discovered that details of 130 of the data subjects whose NINOs had been compromised were also used to “utilise” the DWP universal credit service.
HMRC did not become aware of this incident until 2 December 2020, and it notified the ICO (pursuant to its obligations under Article 33 GDPR) on 14 December 2020.
Details of the incident also appear to be contained in HMRC’s Annual Report for the period in question, where (at page 188) it refers to an incident involving 1023 people where “Personal information [was] used to make changes to customer records on HMRC systems without authorisation”.
There are many redactions in the information that the ICO has now published, but the headline point is that it did not view the incident as a serious enough infringement of HMRC’s obligations under GDPR so as to warrant a monetary penalty. The ICO noted that
…there is no indication that any of the originating personal data used to commit the fraud was obtained from HMRC.
However, it does appear that some people might have lost money, although this has since been repaid to them:
…any repayments due to genuine customers have been (or will be) made good…and therefore all the financial losses will be HMRC’s.
Also redacted are what would probably be details of systems changes that HMRC has taken or agreed to undertake as a result of the incident. These would, says the ICO
increase the protection applied to customer records and data and make stacks of this nature more difficult…
This wording suggests that the ICO felt that the level of protection had not been adequate, in line with HMRC’s security obligations under the GDPR. That being the case, the ICO must have decided that, in this instance, despite the infringement, it wasn’t necessary, or appropriate, to issue a fine or take other enforcement action.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
Filed under Breach Notification, Data Protection, GDPR, HMRC, Information Commissioner, security
Cabinet Office “Clearing House” to be dismantled
By me, on the Mishcon de Reya website:
https://www.mishcon.com/news/cabinet-office-foi-clearing-house-to-be-dismantled
Filed under Uncategorized
NADPO September webinar
NADPO’s next lunchtime webinar (after a short summer break) will be next month, on Tuesday 27 September at 12.30pm – 2pm, with David Renton, barrister, of Garden Court Chambers, on “Data, policing and equality law” and Rosemary Jay, senior consultant attorney at Hunton Andrews Kurth Chambers, on the ICO’s proposed strategy and how it sits (or doesn’t) with the proposed changes to the ICO role/relationship with others in the Data Protection and Digital Information Bill.
Attendance is free, as always, to NADPO members. If you are not a member but are interested in joining drop me a line at chair at nadpo dot co dot uk and I may be able to offer a free ticket on a trial basis.
Filed under Uncategorized
No, 43% of retail businesses have NOT been fined for CCTV breaches
A bizarre news story is doing the rounds, although it hasn’t, as far as I can see, hit anything other than specialist media. An example is here, but all the stories contain similar wording, strongly suggesting that they have picked up on and reported on a press release from the company (“Secure Redact”) that undertook the research behind the story.
We are told that
research reveals that 43% of UK retailers reported that they had been fined for a violation of video surveillance GDPR legislation…Of these retailers, 37% reported paying an equivalent of 2% of their annual turnover, 30% said the fine amounted to 3% of annual turnover, and 15% said the fine was 45% [sic] of annual turnover…A staggering 33% of those fined also had to close stores as a result of enforcement action
The research was apparently based on a survey of 500 respondents in retail businesses (50% in businesses with less than 250 employees, 50% in businesses with more than 250).
What is distinctly odd about this is that since GDPR has been in force in the UK, including since it has become – post-Brexit – UK GDPR, there has been a sum total of zero fines imposed by the Information Commissioner in respect of CCTV. 43% of retail businesses have not been fined for CCTV infringements – 0% have.
You can check here (direct link to .csv file) if you doubt me.
It’s difficult to understand what has gone wrong here: maybe the survey questions weren’t clear enough for the respondents or maybe the researchers misinterpreted the data.
Whatever the reasons behind the stories, those in the retail sector – whilst they should certainly ensure they install and operate CCTV in compliance with GDPR/UK GDPR – should not be alarmed that there is a massive wave of enforcement action on the subject which threatens to put some of them out of business.
Because there isn’t.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
Filed under CCTV, GDPR, Information Commissioner, monetary penalty notice, UK GDPR
ICO secures court-awarded compensation
ICO often say they can’t award compensation, but what they can do is – in criminal cases – make an application for the court to make an award (separate to any fines or costs). But as far as I know, until this case last week, they’d never done so:
https://www.mishcon.com/news/ico-recommends-compensation-awards-in-criminal-prosecution-case
A day to remember
I’ve written about this oddity before, but thought it was worth saying it again, because it can catch the *cough cough* best of us out. The oddity being that a bank holiday falling in any part of the United Kingdom counts as a non-working-day for the purposes of FOIA. So, as January 2nd (or the nearest substitute day) is a bank holiday in Scotland, it is not a working day for the purposes of calculating the maximum timescale for compliance with a request made under FOIA, despite the fact that Scotland has its own Freedom of Information (Scotland) Act 2002.
What “bank holiday” means, according to section 10(6) of FOIA, is
any day other than a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom
And section 1 of the Banking and Financial Dealings Act 1971 says
the days specified in Schedule 1 to this Act shall be bank holidays in England and Wales, in Scotland and in Northern Ireland as indicated in the Schedule
The Schedule therefore provides a number of dates which are to be considered as bank holidays
All straightforward then? Not quite. Sections 1(2) and 1(3) of The Banking and Financial Dealings Act 1971 also provide that the Queen can effectively remove or add a bank holiday “by proclamation”.
As the London Gazette records, on 23 July 2021 a proclamation was made by Her Majesty, providing that
We in pursuance of section 1(3) of the Banking and Financial Dealings Act 1971, do hereby appoint …Tuesday the twelfth day of July in the year 2022 to be a bank holiday in Northern Ireland
So those calculating when FOI responses to requests made in recent weeks are due, will need to factor in this extra day.
Filed under access to information, Freedom of Information
High Court muddle over data protection regime
A relatively common error by those unaccustomed to the rather odd structure of the data protection statutory regime in the UK, is to look first to the Data Protection Act 2018 (“DPA”) for the applicable law, instead of the UK GDPR. This is despite the fact that the very first section of the DPA instructs us in how the regime works. Section 1(2) provides that “most processing of personal data is subject to the UK GDPR”, and then sections 1(4) and (5) explain that Parts 3 and 4 of the DPA deal with those parts of the regime (law enforcement processing and intelligence services processing) which are out of the scope of UK GDPR.
“Put me to one side” – says the DPA tactfully – “you should have picked up your copy of the UK GDPR first, and not me”.
Accordingly, the key provisions, and the basic principles, applying to most processing, are to be found in the UK GDPR.
The result of this relatively common error, is that people will sometimes cite, say, section 45 of the DPA in relation to a generic subject access request, when in fact, the applicable provision is Article 15 of the UK GDPR (section 45 applies to subject access requests to competent authorities for the purposes of law enforcement).
Occasionally, I have seen non-specialist lawyers make this mistake.
And now, I have seen a high court judge do the same. In a judicial review case in the High Court of Northern Ireland, challenging the accuracy of a child’s social care records, part of the claim (which was primarily an Article 8 human rights claim) was pleaded as also a breach of Article 5(1) and (6) of the “GDPR” (the correct pleading should have been, and maybe was, by reference to the UK GDPR) and Part 1 of the DPA. Article 5(1) of the UK GDPR contains the data protection principles.
The judge, however, stated that
It seems to the court that in fact the relevant part of the 2018 Act are sections 86 to 91 which set out the six data protection principles in relation to data processing.
This is simply wrong. Sections 86 to 91 of the DPA lay out the data protection principles only in relation to intelligence services processing (i.e. processing of personal data by the Security Service, the Secret Intelligence Service or by the Government Communications Headquarters).
It isn’t clear whether there was any discussion about this in the court (quite possibly not), but it appears not to have been picked up when the judgment was circulated in draft or published to the parties. As it is, it seems very likely that nothing turns on it. This is because the Part 4 DPA principles, like the Part 3 DPA principles, effectively mirror the principles in Article 5(1) UK GDPR, and so the analysis, for the purposes of the substantive matter, was sound.
So this was an error of form, more than substance.
However, there are some differences between the UK GDPR regime, the Part 3 DPA regime and the Part 4 DPA regime, and in different circumstances an error like this could result in an outcome which is wrong, and harmful.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
Filed under accuracy, Data Protection, Data Protection Act 2018, GDPR, human rights, Ireland, judiciary, UK GDPR
informationrightsandwrongs 