Category Archives: Data Protection

May 9, 2023 · 2:30 pm

ICO: powers to enforce over dead people’s information?

The Information Commissioner’s Office (ICO) has announced that it will not be taking action against Lancashire Police in relation to their disclosure of private information during their investigation into the tragic case of Nicola Bulley.

This is unsurprising, and, objectively, reassuring, because if the ICO had brought enforcement proceedings it would almost certainly have been unlawful to do so. In blunt terms, the ICO’s relevant powers are under laws which deal with “personal data” (data relating to a living individual) and when the police disclosed information about Nicola, she was not living.

There is no discretion in these matters, and no grey areas – a dead person (in the UK, at least) does not have data protection rights because information relating to a dead person is, simply, not personal data. Even if the police thought, at the time of the disclosure, that Nicola was alive, it appears that, as a matter of fact, she was not. (I note that the ICO says it will be able to provide further details about its decision following the inquest into Nicola’s death, so it is just possible that there is further information which might elucidate the position.)

Unless the ICO was going to try to take enforcement action in relation to a general policy, or the operation of a general policy, about disclosure of information about missing people (for instance under Article 24 of the UK GDPR), then there was simply no legal power to take action in respect of this specific incident.

That is not to say that the ICO was not entitled to comment on the general issues, or publish the guidance it has published, but it seems to be either an empty statement to say “we don’t consider this case requires enforcement action”, or a statement that reveals a failure to apply core legal principles to the situation.

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.

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March 24, 2023 · 7:37 am

SRA, data protection and the solicitors roll

In August 2022 the Solicitors Regulation Authority (SRA) announced plans to change its rules and reinstate the annual “keeping of the roll” exercise. Until 2014, all solicitors without practising certificates were required to complete an application each year and pay an administration fee if they wished to remain on the roll. This requirement was dispensed with in 2014 in part because the annual process was seen as burdensome for solicitors.

One of the justifications now for reintroducing the keeping of the roll is given by the SRA as

There are also requirements under the General Data Protection Regulation (GDPR) 2016 [sic] and the seven principles that govern the holding and retention of data. Under GDPR we have responsibility as a data controller to ensure we maintain accurate data relating to individuals and we are processing it fairly and lawfully.

What is slightly odd is that when, in 2014, the SRA proposed to scrap the keeping of the roll, it was not troubled by the observations of the then Information Commissioner about the importance of accuracy and privacy of information. In its reply to the then Commissioner’s consultation response it said that it had “fully considered the issues” and

We consider that the availability of the SRA’s online system, mySRA, to non- practising solicitors as a means of keeping their details up to date, serves to mitigate the possibility of data become inaccurate…To further mitigate the risk of deterioration of the information held on the roll, the SRA can include reminders to keep contact details up to date in standard communications sent to solicitors.

If that was the position in 2014, it is difficult to understand why it is any different today. The data protection principles – including the “accuracy principle” – in the UK GDPR (not in fact the “GDPR 2016” that the SRA refers to) are effectively identical to those in the prior Data Protection Act 1998.

If the SRA was not concerned by data protection considerations in 2014 but is so now, one might argue that it should explain why. The Information Commissioner does not appear to have responded to the consultation this time around, so there is no indication that his views swayed the SRA.

If the SRA was concerned about the risk of administrative fines (potentially larger under the UK GDPR than under the Data Protection Act 1998) it should have reassured itself that any such fines must be proportionate (Article 83(1) UK GDPR) and by the fact that the Commissioner has repeatedly stressed that he is not in the business of handing out fines for minor infringements to otherwise responsible data controllers.

I should emphasise that data protection considerations were not the only ones taken into account by the SRA, and I don’t wish to discuss whether, in the round, the decision to reintroduce the keeping of the roll was correct or not (Joshua Rozenberg has written on this, and the effect on him). But I do feel that the arguments around data protection show a confused approach to that particular issue.

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.

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March 12, 2023 · 12:49 pm

Where’s the Tories’ privacy notice? (just don’t mention the footballer)

The Conservative Party, no doubt scrabbling to gather perceived support for its contentious immigration policies and measures is running a web and social media campaign. The web page encourages those visiting it to “back our plan and send a message” to other parties:

Further down the page visitors are invited to “send Labour a message”

Clicking on either of the red buttons in those screenshots results in a pop-up form, on which one can say whether or not one supports the Tory plans (in the screenshot below, I’ve selected “no”)

One is then required to give one’s name, email address and postcode, and there is a tick box against text saying “I agree to the Conservative Party, and the wider Conservative Party, using the information I provide to keep me updated via email about the Party’s campaigns and opportunities to get involved”

There are two things to note.

First, the form appears to submit whether one ticks the “I agree” box or not.

Second, and in any case, none of the links to “how we use your data”, or the “privacy policy”, or the “terms and conditions” works.

So anyone submitting their special category data (information about one’s views on a political party’s policies on immigration is personal data revealing political opinions, and so Article 9 UK GDPR applies) has no idea whatsoever how it will subsequently be processed by the Tories.

I suppose there is an argument that anyone who happens upon this page, and chooses to submit the form, has a good idea what is going on (although that is by no means certain, and people could quite plausibly think that it provides an opportunity to provide views contrary to the Tories’). In any event, it would seem potentially to meet to definition of “plugging” (political lobbying under the guide of research) which ICO deals with in its direct marketing guidance.

Also in any event, the absence of any workable links to privacy notice information means, unavoidably, that the lawfulness of any subsequent processing is vitiated.

It’s the sort of thing I would hope the ICO is alive to (I’ve seen people on social media saying they have complained to ICO). But I won’t hold my breath on that – many years ago I wrote about how such data abuse was rife across the political spectrum – but little if anything has changed.

And finally, the most remarkable thing of all is that I’ve written a whole post on what is a pressing and high-profile issue without once mentioning Gary Lineker.

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.

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February 28, 2023 · 8:29 pm

FOI embarrassment

At a recent awards event, recognising high-performing Freedom of Information officers and teams (fantastic idea by the organisers/sponsors, by the way*) I gave a brief talk where I stressed that it was important to recognise how much FOI has achieved in its 23 (or 18**) years, and to remember that every day thousands of disclosures are made by thousands of public authorities. It’s very easy to snipe at bad practice, and I often do, but if we don’t acknowledge the benefits, the real opponents of FOI might start arguing for its repeal.

So. Celebrate success. Accentuate the positive. Eliminate the negative.

However.

Then you see a decision notice from the Information Commissioner (ICO), in which a large London council had refused to disclose, under FOI, information on how many enquiries (MEQs) each of its councillors*** had submitted to the council on behalf of constituents. The reason for refusal was that this was the personal data of the councillors (well, yes) and that disclosure would infringe those councillors’ rights under the data protection law (hell, no).

This isn’t time for legal analysis. It really is as extraordinary as it sounds.

Thankfully, the ICO had no truck with it (and the notice does have legal analysis).

Frankly, though, the council should be ashamed.

______________________

*I have no personal or professional interest

**The Act commenced in 2000, but the main provisions didn’t commence until 2005

***At the end of the notice there is a big hint as to the role of the person who made the request – see if you can guess

.

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.

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February 22, 2023 · 8:24 am

Monitoring of lawyers by the state

In the Commons on Monday Robert Jenrick, minister for immigration, said, in the context of a debate on the implications of the violent disorder outside a hotel providing refuge for asylum seekers, in Knowsley on 10 February, and in answer to a question about why no “small boats bill” has been introduced into Parliament

this is one of the most litigious areas of public life. It is an area where, I am afraid, human rights lawyers abuse and exploit our laws at times, and where the courts have taken an expansive approach in the past. That is why we must get this right, but we will be bringing forward that legislation very soon

When pressed on his reference to abuse of the law by lawyers, and asked “how many solicitors, advocates and barristers have been reported by the Home Office in the last 12 months to the regulatory authorities”, Mr Jenrick replied

We are monitoring the activities, as it so happens, of a small number of legal practitioners, but it is not appropriate for me to discuss that here.

This is a remarkable statement, both in its lack of detail and in its potential effect. The prospect of the monitoring of lawyers by the state carries chilling implications. It may well be that Mr Jenrick had no intention of making what could be interpreted as an oppressive statement, but words are important, and words said in Parliament carry particular weight.

It may also be that the “monitoring” in question consists of legitimate investigation into potential criminality by that “small number” of lawyers, but if that was the case, why not say so?

But “monitoring”, in itself, must be done in accordance with the law. If it is in the context of a criminal investigation, or surveillance, there are specific laws which may apply.

And to the extent that it involves the processing of personal data of the lawyers in question (which, inevitably, it surely must, when one considers that “processing” means, among other things “collection, recording, organisation, structuring or storage” performed on personal data) the monitoring must comply with applicable data protection laws).

As a fundamental general principle, processing of personal data must be transparent (see Articles 5(1)(a), 13 and 14 UK GDPR, or, for law enforcement processing, section 44 of the Data Protection Act 2018 (DPA), or, for Intelligence Services Processing, section 93 of the DPA.

There are qualifications to and exemptions from this general principle, but, in the absence of circumstances providing such an exemption, a data subject (here, the lawyers who are apparently being monitored) should be made aware of the processing. The information they should receive includes, among other things: the identity and the contact details of the person directing the processing; the legal basis and the purposes of the processing, and; the recipients or categories of recipients of the personal data.

We tend to call the notices we receive under these provisions “privacy notices”. Those of us who have practised data protection law for a long time will remember the term “fair processing notice” which is arguably a better term. Whatever one calls them, though, such notices are a bedrock of the law – without being aware of the processing, and the risks, rules, safeguards and rights in relation to it, data subjects cannot properly exercise their rights.

With all that in mind, has the Home Office – or whoever it is who is directing the monitoring of the “small number of lawyers” – informed them that they are being monitored? If not, why not?

Returning to my earlier comments about the oppressiveness of comments to the effect that, or the giving of a perception that, the coercive powers of the state are being deployed against lawyers by monitoring them, one wonders if the Information Commissioner should take steps to investigate the background to Mr Jenrick’s comments.

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.

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December 18, 2022 · 8:58 am

Data protection misunderstandings in court

There is something that distinguishes those who have practised data protection law for more than five years and those who have come to it more recently. The former are in possession of a secret. It is this: GDPR did not change the fundamentals of data protection.

Look at the keystones of the law – the data protection principles in Schedule One of the Data Protection Act of 1998 (the prior law) and in Article 5 UK GDPR (the current). They are effectively identical. And in fact, they have barely changed from the principles in the 1984 Data Protection Act, and those in the Council of Europe Data Protection Convention 108 of 1981.

Yet even in the courts one still sees from time to time the misconception that the GDPR rights and obligations were something fundamentally new.

An example is a recent case in the Employment Appeal Tribunal. The details of the case are not important for this post, but what is relevant is that the claimant employee argued that information about his previous employment history at the respondent employer (from 2008-2011) should not have been allowed in evidence. One argument in support of this was that the lengthy retention of this information was in breach of the employer’s data protection obligations (and the claimant had received correspondence from the Information Commissioner’s Office broadly agreeing with this).

But in response to this argument the respondent employer asserted that

Prior to [GDPR coming into effect on 25 May 2018] there was no “right to erase“. Accordingly, the period during which the respondent should arguably have taken steps to delete data was around nine months from this point until 28 February 2019.

This fails to recognise that, even if there was no express right to erasure prior to GDPR (n.b. there was certainly an implied right, as the European Court of Justice found in Google Spain) there was certainly an obligation on a data controller employer not to retain personal data for longer than was necessary (see paragraph 5 Schedule One to the 1998 Act).

The judge, however, accepted the respondent’s argument (although in all fairness to her she does point out that neither party took her to the legislation or the case law):

I accept that the ICO’s reference to retention being likely to breach data protection requirements, was (at its highest) concerned with the nine month period between the GDPR coming into effect and the claimant indicating an intention to commence litigation

That is not what the the quoted correspondence (at paragraph 17) from the ICO said, and it is not a correct statement of the law. If the period of retention of the data was excessive, there is no reason to say it was not in contravention of the prior law, as well as GDPR.

Ultimately, it is doubtful that this would have made much difference. As often in such proceedings, the relevance of the information to the matter was key:

in so far as the Respondent was in breach of data protection law for the nine month period I have referred to, it does not follow from this that the documentation was inadmissible in the [Employment Tribunal] proceedings

But one wonders if the judge might have taken a slightly different view of, instead, she had found that the Respondent was in fact in breach of data protection law for several years (rather than just nine months).

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.

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November 2, 2022 · 5:11 pm

ICO threatened Matt Hancock with £17.5m fine (sort of)

It’s well known that, under the UK GDPR, and the Data Protection Act 2018 (DPA), the Information Commissioner can fine a controller or a processor a maximum of £17.5m (or 4% of global annual turnover). Less well known (to me at least) is that he can fine any person, including you, or me, or Matt Hancock, the same, even if they are not a controller or processor.

Section 142 of the DPA empowers the Commissioner to serve “Information Notices”. These fall broadly into two types: those served on a controller or processor requiring them to provide information which the Commissioner reasonably requires for the purposes of carrying out his functions under the data protection legislation; and those requiring

any person to provide the Commissioner with information that the Commissioner reasonably requires for the purposes of—

(i)investigating a suspected failure of a type described in section 149(2) or a suspected offence under this Act, or

(ii)determining whether the processing of personal data is carried out by an individual in the course of a purely personal or household activity.

And by section 155(1) of the DPA, the Commissioner may serve a monetary penalty notice (aka “fine”) on any “person” who fails to comply with an Information Notice. That includes you, or me, or Matt Hancock. (Section 157(4) provides that the maximum amount is £17.5m, or 4% of global annual turnover – although I doubt that you, I, or Matt Hancock has an annual global turnover.)

All very interesting and theoretical, you might think. Well, so might Matt Hancock have thought, until an Information Notice (which the Commissioner has recently uploaded to the ICO website) dropped onto his figurative doormat last year. The Notice was in relation to the Commissioner’s investigation of the leaking of CCTV images showing the former Secretary of State for Health and Social Care and his former aide enjoying each other’s company. The investigation – which was into the circumstances of the leak, and not Matt Hancock’s conduct – concluded in April of this year, with the ICO deciding that there was insufficient evidence to justify further action. But the Notice states clearly at paragraph 7 that failure to comply is, indeed, punishable with a fine of up to £17.5m (etc.).

The Matt Hancock Notice admittedly addresses him as if he were a controller (it says the ICO is looking at his compliance with the UK GDPR) although I am not sure that is correct – Matt Hancock will indeed be a controller in respect of his constituency work, and his work as an MP outside ministerial duties, but the normal approach is that a ministerial department will be the relevant controller for personal data processed in the context of that department (thus, the Department for Health and Social Care shows as a controller on the ICO register of fee payers).

Nonetheless, the ICO also issued an Information Notice to Matt Hancock’s former aide (as well as to Helen Whateley MP, the Minister of State), and that one makes no mention of UK GDPR compliance or a suggestion she was a controller, but does also “threaten” a potential £17.5m fine.

Of course, realistically, no one, not even Matt Hancock, was really ever at risk of a huge fine (section 155(3) of the DPA requires the Commissioner to have regard to various factors, including proportionality), but it strikes me as a remarkable state of affairs that you, I or any member of the public caught up in a matter that leads to ICO investigation, and who might have relevant information, is as a matter of law vulnerable to a penalty of £17.5m if they don’t comply with an Information Notice.

Even Matt Hancock.

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.

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October 18, 2022 · 7:34 am

NADPO conference on 22 Nov, with keynote from John Edwards, Information Commissioner

NADPO’s 2022 annual conference will see a return to in-person events. And we are delighted that the keynote speaker is UK Information Commissioner John Edwards. John will be joined by a stellar line up including

  • Maurice Frankel, from the Campaign for Freedom of Information
  • Professor Victoria Nash, from the Oxford Internet Institute
  • Professor Lilian Edwards, from Newcastle University, and also the Ada Lovelace Institute
  • Sarah Houghton, Head of Competition Law at Mishcon de Reya LLP
  • Stewart Room, of DWF and also President of NADPO

The conference will take place on 22 November, at the Mishcon de Reya offices at Africa House, Kingsway (right next to Holborn tube station).

Attendance is free (as ever) for all NADPO members, and it is not too late to purchase a membership, for the price of £130, which guarantees free attendance at all NADPO events, as well as at some partners’ events, as well as discounted rates on commercial training services from respected providers. Members also receive a monthly newsletter.

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October 7, 2022 · 7:42 am

GDPR is rubbish

I was challenged recently along the lines that “you don’t like change – you think that GDPR is great and any amendments are negative”.

After I’d spluttered in rage that this wasn’t true, I checked my thoughts. I don’t think the challenge was fair – I don’t mind the idea of repeal or reform of the UK GDPR model – but I do still think that any change needs to be planned and drafted very carefully, so as not to interfere with the core data protection concepts, and checks and balances, that have – broadly – carried through and developed over a series of legal instruments, starting with the Council of Europe Convention 108 of 1981 and the OECD Guidelines of 1980.

But, also, I’m happy to point out that, at times, GDPR is simply rubbish. And I don’t mean in broad legal terms – see for instance David Erdos’s interesting criticisms – I mean that it sometimes doesn’t make sense.

There’s an example in recital 63

A data subject should have the right of access to personal data…in order to be aware of, and verify, the lawfulness of the processing.

I think this is meant to mean “a data subject should have the right of access in order to be aware of the processing and verify its lawfulness”. But, as drafted, it suggests the data subject should be able to be aware of the lawfulness of the processing, and verify that lawfulness, which lacks logic.

But that’s in the recitals, and no one reads the recitals do they?

But consider one of the substantive provisions. Article 5(2), which describes the “accountability principle” says

The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).

Think about what that says: “the controller shall be responsible for…paragraph 1” (paragraph 1 containing the core data protection principles). What it is surely intended to mean is “the controller shall be responsible for compliance with paragraph 1”, but it doesn’t say that. In literal terms it says that the controller has responsibility for the legislative words.

And it’s worth noting that in the French text (French being the only other language this lumbering English person has really even vague familiarity with), the wording does say that: “…est responsable du respect du paragraphe 1…”.

I’m not suggesting this is a big problem: a regulator and a court would almost certainly read the wording so as to give effect to the legislator’s intention.

It just irritates me.

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.

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October 3, 2022 · 8:21 pm

Certainly uncertain – data protection reform developments

In recent weeks the future of data protection law in the UK has been not just hard to predict, but also hard to keep up with.

Since Brexit, the UK has had its own version of the EU’s GDPR, called, obviously enough, the “UK GDPR“. Then, on 18 July, a Data Protection and Digital Information Bill was presented in Parliament – it proposed some significant (but possibly not hugely so) changes to the current regime, but it retained the UK GDPR. It was scheduled to have its second reading in the House of Commons on 5 September, but this was postponed “to allow Ministers to consider the legislation further”.  

Following this, on 22 September, the Retained EU Law (Revocation and Reform) Bill was introduced. This appeared to propose the “sunsetting” (i.e. the repeal) of multiple data and information laws, including the UK GDPR, by the end of 2023.

The next development, on the first day of the Conservative Party conference, is the announcement by the Culture Secretary, Michelle Donelan, that

we will be replacing GDPR with our own business and consumer-friendly data protection system… Many…smaller organisations and businesses only in fact employ a few people. They don’t have the resources or money to negotiate the regulatory minefield that is GDPR. Yet right now, in the main, they’re forced to follow this one-size-fits-all approach.

She also suggested that businesses had suffered from an 8% reduction in profit from GDPR. It is not immediately clear where this figure comes from, although some have suggested that an Oxford Martin School paper is the source. This paper contains some remarkably complex equations. I have no competence in assessing, and no reason to doubt, the authors’ economic and statistical prowess, but I can say (with a nod to the ageless concept of “garbage in, garbage out”) that their understanding of data protection law is so flawed as to compromise the whole paper. They say, for instance

websites are prohibited from sharing user data with third parties, without the consent from each user

and

companies that target EU residents are required to encrypt and anonymise any personal data it [sic] stores

and (probably most bizarrely)

as users incur a cost when prompted to give consent to using their data, they might reduce online purchases, leading to lower sales

To be quite clear (as politicians are fond of saying): websites are not prohibited from sharing data without the consent from “users” (if they were, most ecommerce would grind to a halt, and the internet economy would collapse); companies subject to GDPR are not required to anonymise personal data they store (if they did, they would no longer be able to operate, leading to the collapse of the economy in general); and “users” do not have to consent to the use of their data, and I am still scratching my head at why even if they did they would incur a cost.

If the authors base their findings on the economic cost of GDPR on these bases, then there are some very big questions for them to answer from anyone reviewing their paper.

I may have the wrong paper: I actually really hope the government will back up its 8% figure with something more sensible.

But regardless of the economic thinking this paper, or underpinning the developments in the statutory regime, it is possible that all the developments cohere: that the Data Protection and Digital Information Bill, when it re-emerges, will have been amended so as to have the effect of removing references to “GDPR” or the “UK GDPR”, and that this will mean that, in substance, if not in name, the principles of the UK GDPR are assimilated into a new piece of domestic legislation.

But (given that the government’s focus is on it) business, just as nature, abhors a vacuum – many business owners (and indeed many data protection practitioners) must be hoping that there is a clear route forward so that the UK’s data protection regime can be considered, and applied, with at least a degree of certainty.

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.

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