Category Archives: Data Protection

€9.5m GDPR fine to German telco for insecure customer authentication

Another post by me on the Mishcon de Reya website – federal telecoms regulator issues fine for Article 32 failings after callers could give customer name and d.o.b. and obtain further information.

Leave a comment

Filed under Data Protection, Europe, GDPR, monetary penalty notice

The Cost of Enforcement

I wrote recently, on the Mishcon de Reya Data Matters blog, about whether BA and Marriott might actually avoid the fines the Information Commissioner’s Office (ICO) intends to serve on them. In that piece, I said

one has no doubt whatsoever that BA and Marriott will have had lawyers working extensively and aggressively on challenging the notices of intent.

With that in mind, it is interesting to note that, in commentary on recent management accounts, the ICO warns that

Legal expenses…are tracking at much higher levels than budgeted and are expected to be adverse to budget for the full financial year

Indeed, the ICO’s legal spend for this year is forecast to be £2.65m, against a budget of £1.98m. These sound like large sums (and of course they are), but, compared with the likely legal budgets of BA, or Marriott, or indeed, many other of the huge companies whose processing is potentially subject to enforcement action by ICO, they are tiny. Any large controller faced with a huge fine will almost inevitably spend large sums in challenging the action.

Query whether ICO can, realistically, actually afford to levy fines at the level GDPR envisages?

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.

Leave a comment

Filed under Data Protection, enforcement, GDPR, Information Commissioner, monetary penalty notice

First prosecution under DPA 2018?

The Information Commissioner has successfully prosecuted a former Social Services Support Officer at Dorset County Council for an offence under section 170 of the Data Protection Act 2018 – I think that this is the first such prosecution under the 2018 Act. Section 170 is in broadly similar terms to section 55 of the Data Protection Act 1998, under which any number of prosecutions were brought for unlawfully obtaining (etc) personal data without the consent of the controller.

Just as the 1998 Act did, the 2018 Act reserves such prosecutions to the Commissioner (except that they may also be brought by or with the consent of the Director of Public Prosecutions – see s197 of the 2018 Act).

What we have not yet seen is a prosecution of the “new” offence at section 170(1)(c) of retaining personal data (after obtaining it) without the consent of the person who was the controller when it was obtained. This is a most interesting provision – I have wondered whether the mischief it aims to address is that which arises when someone inadvertently obtains personal data (perhaps as a result of a mistake by the controller) but then refuses to hand it back. This is not an infrequent occurrence, and powers at civil law to address the issue are potentially complex and expensive to exercise. It will be interesting to see whether prosecutions in this regard emerge in due course.

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.

Leave a comment

Filed under crime, Data Protection, Data Protection Act 2018, Information Commissioner

Storm clouds

Another post by me on the Mishcon de Reya website: my crystal ball may be way off, but I wonder if genuine enforcement action might be on its way for AdTech and its biggest players.

Leave a comment

Filed under adtech, Data Protection, enforcement, GDPR, Information Commissioner

Whither the ICO fines for BA and Marriott?

I have a new post on the Mishcon de Reya website, asking what is happening regarding the notices of intent served some months ago on BA and Marriott Inc.

Leave a comment

Filed under Data Protection, GDPR, Information Commissioner, monetary penalty notice

Data protection and legal knowledge – it cuts both ways

In his recent annual COMBAR lecture, the Chancellor of the High Court, Sir Geoffrey Vos, said

an insight into the law relating to data and data protection should be one of the most important specialisms in the armoury of a modern commercial lawyer

To which I say, “spot on, Sir Geoffrey”. As he goes on to add

Whilst many glaze over at the mention of “data protection”, it will become something that every lawyer at all levels will need to understand and advise upon

Ignore the cruel jibe – he is right, or almost so: in fact lawyers at all levels should already be understanding and advising on data protection.

But it cuts both ways – those who are not qualified lawyers, but who practise in the area of data protection, need to understand its basis in law. Too often one sees non-lawyer practitioners failing to ground their advice in the legal definitions and statutory principles, and being unaware of prior court decisions, or the concept of stare decisis itself, or even how to navigate a statute.

I’m not here to recommend any particular provider, or offering, but I will say that all lawyers could benefit from good training in at least data protection, and all data protection practitioners could benefit from good training in the basics of the law.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under Data Protection, Uncategorized

The most boring blogpost on this blog?

Although GDPR, and the Data Protection Act 2018 (DPA18), took effect from 25 May 2018, it has been notable that the Information Commissioner’s Office (ICO) has continued to exercise its enforcement powers under the prior law. There is no problem with this, and it is only to be expected, given that regulatory investigations can take some time. The DPA18 contains transitional provisions which mean that certain sections of the Data Protection Act 1998 continue to have effect, despite its general repeal. This is the reason, for instance, why the ICO could serve its recent enforcement notice on Hudson Bay Finance Ltd using the powers in section 40 of the 1998 – paragraph 33 of Schedule 20 to the DPA18 provides that section 40 of the 1998 Act continues to apply if the ICO is satisfied that the controller contravened the old data protection principles before the rest of the 1998 Act was repealed.

However, what is noticeable in the Hudson Bay Finance Ltd enforcement notice is that it says that it was prompted by a request for assessment by the complainant, apparently made on 21 September 2018, purportedly made under section 42 of the 1998 Act. I say “purportedly” because the transitional provisions in Schedule 20 of DPA18 require the ICO to consider a request for assessment made before 25 May 2018, but in all other respects, section 42 is repealed. Accordingly, as a matter of law, a data subject can (after 25 May 2018) no longer exercise their right to request an assessment under section 42 of the 1998 Act.

This is all rather academic, because it appears to me that the ICO has discretion – even if it does not have an obligation – to consider a complaint by a data subject relating to compliance with the 1998 Act. And ICO clearly (as described above) has the power still to take enforcement action for contraventions of the 1998 Act. But no one ever told me I can’t use my blog to make arid academic points.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under Data Protection, Data Protection Act 2018, enforcement, Information Commissioner

Blagging as academic research

A white paper on GDPR subject access rights, presented at the Blackhat USA 2019 conference, got a lot of UK media coverage recently. Less discussion was had, however, about whether the research raised questions about the ethics and legality of “blagging”.

The paper, by Oxford University DPhil researcher James Pavur and Casey Knerr, talked of “Using Privacy Laws to Steal Identities” and describes Pavur’s attempts to acquire another person’s (Knerr’s) data, by purporting to be that person and pretending to exercise their access rights under Article 15 of the General Data Protection Regulation (GDPR). It should be emphasised that Knerr was fully acquiescent in the exercise.

Pavur and Knerr’s paper has a section entitled “Ethical and legal concerns” but what it notably fails to address is the fact that deliberately obtaining personal data without the consent of the controller is potentially a criminal offence under UK law.

Since 1998 it has been an offence to deliberately obtain personal data by deception, with defences available where the obtaining was, for instance, justified as being in the public interest. The Data Protection Act 2018 introduces, at section 170, a new defence where the obtaining is for academic purposes, with a view to publication and where the person doing the obtaining reasonably believes that it was justified in the public interest. Previously, this defence was only available where the obtaining was for the “special purposes” of journalism, literature or art.

It would certainly appear that Pavur obtained some of the data without the consent of the controller (the controller cannot properly be said to have consented to its disclosure if it was effected by deception – indeed, such is the very nature of “blagging”), but it also appears that the obtaining was done for academic purposes and with a view to publication and (it is likely) in the reasonable belief that the obtaining was justified in the public interest.

However, one would expect that prior to conducting the research, some analysis of the legal framework would have revealed the risk of an offence being committed, and that, if this analysis had been undertaken, it would have made its way into the paper. Its absence makes the publicity given to the paper by Simon McDougall, of the Information Commissioner’s Office (ICO), rather surprising (McDougall initially mistakenly thought the paper was by the BBC’s Leo Kelion). Because although Pavur (and Knell) could almost certainly fall back on the “academic purposes” defence to the section 170 offence, a fear I have is that others might follow their example, and not have the same defence. Another fear is that an exercise like this (which highlights risks and issues with which controllers have wrestled for years, as Tim Turner points out in his excellent blogpost on the subject) might have the effect of controllers becoming even more keen to demand excessive identification credentials for requesters, without considering – as they must – the proportionality of doing so.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under Data Protection, Information Commissioner

ICO change to guidance on Subject Access Request time limits

I have a post on the Mishcon de Reya website, on an odd, but potentially very significant, change of position by the Information Commissioner’s Office, when it comes to calculating GDPR time limits for data subject requests.

ICO change to guidance on Subject Access Request time limits

Leave a comment

Filed under Data Protection, GDPR, Information Commissioner

Boris Johnson and GDPR

Might there have been a breach of data protection law in the recording, apparently by neighbours, of incidents at Boris Johnson’s home, and the passing of the recording to the media and the police? Almost certainly not.

(In this post I would like to avoid, as far as possible, broader ethical questions, and I will restrict any political observations to this: if Johnson becomes leader of the Conservative Party, and therefore prime minister, the two main UK political parties will be being led by people less fit to hold the role than at any time in my lifetime.)

In general, processing of personal data done for one’s own domestic purposes avoids the need for compliance with data protection law: Article 2(2)(c) of the General Data Protection Regulation (GDPR) – which of course provides the overarching statutory framework for most processing of personal data – says that the GDPR itself “does not apply to the processing of personal data…by a natural person in the course of a purely personal or household activity”. This is understandable: were there not such a carve-out, one’s children might, say, try to sue one for unlawful processing of their pocket-money data.

However, that word “purely” is key in Article 2. Processing which is not in the course of a “purely” domestic activity, such as, say, passing a recording of an altercation involving one’s neighbours to the media and the police, will be within GDPR’s scope.

So if GDPR is likely to apply, what are the considerations?

Firstly, passing information to the police about an altercation involving one’s neighbours is straightforward: GDPR permits processing which is necessary for the performance of a task carried out in the public interest (Article 6(1)(e)) and where the processing is necessary for the purposes of someone’s legitimate interests (provided that such interests are not overridden by the rights of the data subject) (Article 6(1)(f)).

But what of passing such information to the media? Well, here, the very broad exemption for the purposes of journalism will apply (even though the neighbours who are reported to have passed the information to the media are not, one assumes, journalists as such). GDPR requires members states to reconcile the right to the protection of personal data with the right to freedom of expression and information, including processing for journalistic purposes, and this obligation is given effect in UK law by paragraph 26 of Schedule 2 to the Data Protection Act 2018. This provides that the GDPR provisions (for the most part) do not apply to processing of personal data where it

is being carried out with a view to the publication by a person of journalistic, academic, artistic or literary material, and…the controller reasonably believes that the publication of the material would be in the public interest [and] the controller reasonably believes that the application of [the GDPR provisions] would be incompatible with the… purposes [of journalism].

Here, the controller is not just going to be the journalist or media outlet to whom the information was passed, but it is also likely to be the non-journalist person who actually passes the information (provides that the latter passes it with a view to its publication and does so under a reasonable belief that such publication would be in the public interest).

The equivalent exemption in the prior law (the Data Protection Act 1998) was similar, but, notably, applied to processing which was only carried for the purposes of journalism (or its statutory bedfellows – literature and art). The absence of the word “only” in the 2018 Act arguably greatly extends the exemption, or at least removes ambiguity (there was never any notable example of action being taken under the prior law against the media for processing which was alleged to be unlawful and which was for more than one purposes (i.e. not solely for the purposes of journalism)).

It seems almost certain, then, that Johnson’s non-journalist neighbours could avail themselves of the “journalism” exemption in data protection law. As could anyone who processes personal data with a view to its publication and who reasonably believes such publication is in the public interest: we should prepare to see this defence aired frequently over the coming years. Whether the exemption is too broad is another question.

Because of the breadth of the journalism exemption in data protection law, actions are sometimes more likely to be brought in the tort of misuse of private information (see, for example, Cliff Richard v BBC, and Ali v Channel 5). Whether such a claim might be available in this case is also another question, and not one for this blog.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

Leave a comment

Filed under Data Protection, GDPR, journalism, police