Category Archives: Data Protection

October 3, 2024 · 6:44 am

You must be taking the PSNI

[Reposted from LinkedIn]

The Information Commissioner’s Office has fined the Police Service of Northern Ireland £750,000 for the failings that led to the public disclosure of the surnames, initials, ranks and roles of all 9,483 PSNI officers and staff, putting countless people’s lives at risk from dissident republicans. The fine would have been £5.6m if the ICO’s “public sector approach” had not been applied.

The disclosure was made in a spreadsheet attached to a Freedom of Information Act response. The spreadsheet was intended to disclose some information, but also contained a hidden tab, where the offending information was situated.

Eleven years ago I was asked to write a piece in The Guardian about the risks of hidden data in spreadsheets. At the time, as many of you will remember, these sort of incidents were prevalent in councils and the NHS. I called for the ICO to do more to warn, and, in fairness, they did. But the fact that this sort of incident was allowed to happen is shocking: the ICO notice points out that there PSNI would regularly create pivot tables to prepare information for disclosure, where the risk of data being hidden (but easily revealed) is particularly high.

The ICO announcement is unusual in that it also allows the Chief Constable of PSNI to comment, and – extraordinarily – to express that he is “extremely disappointed at the level of the fine” (despite the massive reduction over what it would have been if he was in charge of a private sector organisation).

Chief Constable Boucher – you got off lightly.

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, fines, Freedom of Information, Information Commissioner, personal data breach, police, UK GDPR

Tagged as , , ,

September 3, 2024 · 7:03 am

CCTV and commercial property leases

[reposted from LinkedIn]

There is a minor, but interesting, data protection point in this judgment on a dispute between a landlord and commercial tenant about a lease.

The claimant was a dentist who had become suspended and therefore could not practise as a fully registered dentist in accordance with the terms of the lease. The dispute was about whether she had done so, and, if so, whether the court should grant relief from forfeiture (it did, on the facts).

The claimant also sought and was granted a declaration, in relation to the landlord’s siting of internal CCTV cameras, “that the processing of the claimant’s data by the defendant is unlawful and breached the provisions of the Data Protection Act 2018 and the regulations [sic] relating thereto”. 

The evidence was that “a CCTV camera was installed by the defendant by being affixed to the door frame above the entrance to the toilets in the building, on the same floor as the room let to the claimant, pointing at the stairs and the door to the claimant’s…premises”. Although the defendant landlord claimed that “the CCTV was placed there for the legitimate purpose of monitoring those going to the building’s toilets”(!), the judge did not accept that: “as it was placed, [it] had a distinct view of the entrance to the claimant’s room, and, when it was opened, into the room itself. There is no real reason why it could not have been so positioned to exclude that, or why indeed it could not have been located to point in the opposite direction to monitor those coming out of the toilet area door[!]… it was an attempt to monitor who was attending the claimant’s room and its use.”

Unfortunately, the judge does not appear to have made findings as to what precisely were the infringements of the data protection law (one notes that the declaration was sought only in respect of the claimant’s own data, and not of those attending her premises, but the finding appears to be in respect of both). 

So, as I say, a minor point, but interesting. Landlords, even in commercial property agreements (and disputes arising), should not simply assume they have the right to place CCTV on their property in such a way as it infringes the data protection rights of individuals using the property (whether they be tenants, employees of tenants, or the tenant’s visitors).

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.

2 Comments

Filed under CCTV, Data Protection, judgments, property dispute, Uncategorized

Tagged as ,

August 31, 2024 · 7:41 am

JR judgment, and the lack of third party rights under FOIA

[reposted from LinkedIn]

The Freedom of Information Act 2000 (FOIA) confers rights on those requesting information, and obligations on public authorities (it also confers duties and powers on the Information Commissioner). What it does not do is confer any rights on someone whose information is held by a public authority and requested to be disclosed: if someone asks for that third party’s information and the public authority discloses, or is minded to disclose, the third party can do little or nothing to stop it.

That appears to be illustrated by a case in the High Court of Northern Ireland. I say “appears” because there doesn’t seem to be a judgment yet, and so I’ve had to piece together what seems to have been at issue.

FOIA requests were made by three unionist MPs to the Legal Services Agency (LSA) for funding for legal cases brought by victims’ campaigner Raymond McCord. It appears that the LSA proposed to disclose the information, and Mr McCord (because he has no rights as a third party under the FOIA regime itself) brought judicial review proceedings to prevent disclosure.

According to the media reports, those proceedings have failed, with the judge saying

There is a legitimate public interest in the openness and accountability of the LSA as a public authority responsible for the expenditure of substantial public funds…[Mr McCord’s] contention that he is a private individual sits uneasily with his own description as a ‘peace campaigner’ and his various interviews with the media, including when he challenged the public claims made by Mr Allister about the appropriateness of him being granted legal aid…Self-evidently, the applicant has injected himself into the public discourse on a number of high-profile cases which are of obvious and manifest interest to the public. This is particularly so in relation to Brexit litigation.

It also appears that at some stage the ICO was involved, and indicated its view that disclosure would “likely be unfair and unlawful”. I imagine that this was because Mr McCord made a data protection complaint. In any event, the ICO said that its view was not legally binding (an interesting side note: could the ICO have issued an enforcement notice under section 149 of the Data Protection Act 2018 to prevent a public authority releasing personal data under FOIA?)

This issue of “third party rights” (or lack thereof) under FOIA is a very interesting one. The section 45 Code recommends that public authorities consult with third parties where necessary, and have regard to their representations, but this still doesn’t confer a direct right.

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, FOIA, Freedom of Information, Information Commissioner, judgments, judicial review, personal data

Tagged as , ,

August 7, 2024 · 6:11 pm

Who was the first ever DPO?

Prompted by a rather strange comment on LinkedIn, by someone who claimed they were the UK’s first DPO in 2007, and then claimed they meant “Data Privacy Officer” and not “Data Protection Officer” I thought I’d do some in-depth research into who might have been (you can thank Aaron Needham for setting the thought in my mind).

By, “in-depth” research, I mean half an hour or so on Google Books Advanced Search, so my findings are as authoritative as that would indicate. I would welcome others’ research.

As I mentioned on LinkedIn, NADPO, of which I am Chair, was founded in 1993, as the “National Association of Data Protection Officers”. The fact that its founder members thought it appropriate to create a national association of DPOs indicates that there were already a fair few of them around. And of course that was the case: the UK had had a Data Protection Act since 1984. Although that Act didn’t create a formal, statutory, role of DPO, it undoubtedly created the statutory scheme that gave rise to widespread adoption of the title, and the role.

And the UK was behind some other countries, in particular Germany. Although the person who might appear to be the world’s first DPO (or Datenschutzbeauftragter), Willi Birkelbach, is in fact more correctly characterised as the first Data Protection Supervisory Authority.

But who, you ask me, was the UK’s first DPO (and DPO proper)? Well, my friends, the earliest candidate I’ve so far managed to find, from an entry in the Commonwealth Universities Yearbook of 1979, was a certain “Halstead, J” of Lancaster University.

Therefore, unless or until someone comes up with a better candidate, I am going to bestow the title of the UK’s first DPO on J. Halstead.

It would be great to know more about them, as well, so if anyone has any info, I’d love to hear it.

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, Data Protection Officer, DPO, NADPO

Tagged as ,

July 20, 2024 · 9:11 pm

Crowdstrike and personal data breaches: loss vs unavailability

I ran a poll on LinkedIn in recent days which asked “If a controller temporarily can’t access personal data on its systems because of the Crowdstrike/MSFT incident is it a personal data breach?” 

I worded the question carefully.

50% of the 100-odd people who voted said “no” and 50% said “yes”. The latter group are wrong. I say this with some trepidation because there are people in that group whose opinion I greatly respect. 

But here’s why they, and, indeed, the Information Commissioner’s Office and the European Data Protection Board, are wrong.

Article 4(12) of the GDPR/UK GDPR defines a “personal data breach”. This means that it is a thing in itself. And that is why I try always to use the full term, or abbreviate it, as I will here, to “PDB”. 

This is about the law, and in law, words are important. To refer to a PDB as the single word “breach” is a potential cause of confusion, and both the ICO and the EDPB guidance are infected by and diminished by sloppy conflation of the terms “personal data breach” and “breach”. In English, at least, and in English law, the word “breach” will often be used to refer to a contravention of a legal obligation: a “breach of the law”. (And in information security terminology, a “breach” is generally used to refer to any sort of security breach.) But a “breach” is not coterminous with a “personal data breach”.

And a PDB is not a breach of the law: it is a neutral thing. It is also crucial to note that nowhere do the GDPR/UK GDPR say that there is an obligation on a person (whether controller or processor) not to experience a PDB, and nowhere do GDPR/UK GDPR create liability for failing to prevent one occurring. This does not mean that where a PDB has occurred because of an infringement of other provisions which do create obligations and do confer liability (primarily Article 5(1)(f) and Article 32) there is no potential liability. But not every PDB arises from an infringement of those provisions.

The Article 4(12) definition is “a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed”. Let us break that down:

  • A breach of security…
  • leading to [one or more of]
  • accidental or unlawful…
  • 1. destruction of…
  • 2. loss of…
  • 3. alteration of…
  • 4. unauthorised disclosure of…
  • 5. unauthorised access to…
  • personal data processed.

If an incident is not a breach of security, then it’s not a PDB. And if it is a breach of security but doesn’t involve personal data, it’s not a PDB. But even if it is a breach of security, and involves personal data, it’s only a PDB if one of the eventualities I’ve numbered 1 to 5 occurs.

Note that nowhere in 1 to 5 is there “unavailability of…” or “loss of access to…”. 

Now, both the ICO, and the EDPB, read into the words “loss of…personal data…” the meaning, or potential meaning “loss of availability of personal data”. But in both cases they appear to do so in the context of saying, in terms, “loss of availability is Article 4(12) ‘loss’ because it can cause harm to data subjects”. I don’t dispute, and nor will many millions of people affected by the Crowdstrike incident, that unavailability of personal data can cause harm. But to me, “loss” means loss: I had something, and I no longer have it. I believe that that is how a judge in the England and Wales courts would read the plain words of Article 4(12), and decide that if the legislator had intended “loss” to mean something more than the plain meaning of “loss” – so that it included a meaning of “temporary lack of access to” – then the legislator would have said so. 

Quite frankly, I believe the ICO and EDPB guidance are reading into the plain wording of the law a meaning which they would like to see, and they are straining that plain wording beyond what is permissible.

The reason, of course, that this has some importance is that Article 33 of the GDPR/UK GDPR provides that “in the case of” (note the neutral, “passive” language) a PDB, a controller must in general make a notification to the supervisory authority (which, in the UK, is the ICO), and Article 34 provides that where a PDB is likely to result in a high risk to the rights and freedoms of natural persons, those persons should be notified. If a PDB has not occurred, no obligation to make such notifications arises. That does not mean of course, that notifications cannot be made, through an exercise of discretion (let’s forget for the time being – because they silently resiled from the point – that the ICO once bizarrely and cruelly suggested that unnecessary Article 33 notifications might be a contravention of the GDPR accountability principle.)

It might well be that the actions or omissions leading to a PDB would constitute an infringement of Articles 5(1)(f) and 32, but if an incident does not meet the definition in Article 4(12), then it’s not a PDB, and no notification obligation arises. (Note that this is an analysis of the position under the GDPR/UK GDPR – I am not dealing with whether notification obligations to any other regulator arise.)

I can’t pretend I’m wholly comfortable saying to 50% of the data protection community, and to the ICO and EDPB, that they’re wrong on this point, but I’m comfortable that I have a good arguable position, and that it’s one that a judge would, on balance agree with. 

If I’m right, maybe the legislator of the GDPR/UK GDPR missed something, and maybe availability issues should be contained within the Article 4(12) definition. If so, there’s nothing to stop both the UK and the EU legislators amending Article 4(12) accordingly. And if I’m wrong, there’s nothing to stop them amending it to make it more clear. In the UK, in particular, with a new, energised government, a new Minister for Data Protection, and a legislative agenda that will include bills dealing with data issues, this would be relatively straightforward. Let’s see.

And I would not criticise any controller which decided it was appropriate to make an Article 33 notification. It might, on balance, be the prudent thing for some affected controllers to do so. The 50/50 split on my poll indicates the level of uncertainty on the part of the profession. One also suspects that the ICO and the EU supervisory authorities might get a lot of precautionary notifications.

Heck, I’ll say it – if anyone wants to instruct me and my firm to advise, both on law and on legal strategy – we would of course be delighted to do so.

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.

1 Comment

Filed under Data Protection, EDPB, GDPR, Information Commissioner, Let's Blame Data Protection, LinkedIn Post, personal data breach, UK GDPR

Tagged as , ,

July 19, 2024 · 8:18 pm

Yes, Minister for Data Protection

This is important news for data protection lawyers and practitioners. And indeed for data subjects. The government has created a role of Minister of State for Data Protection and Telecomms, and has appointed Sir Chris Bryant as the first post-holder.

He will have responsibility for Digital infrastructure and telecoms, Building Digital UK (BDUK), Data protection, including the “Data Bill” (does this mean the Digital Information and Smart Data (DISM) Bill, or something else to come down the line?), the Information Commissioner’s Office (ICO), Digital inclusion, and
Space sector growth and UK Space Agency (UKSA).

In debates on the Data Protection and Digital Information Bill Bryant, then the Shadow Culture secretary, supported the proposed reforms to the ICO and provisions on digital verification and smart data (which have been revived now in the DISM Bill), but opposed what Labour saw as attempts by the then government to water down subject access rights, and opposed extending the PECR soft opt-in to political party marketing. He also expressed notable concerns about the proposal to confer wide powers on DWP to get information from financial service providers.

In those debates, Bryant said that Labour wanted a law which “would unlock the new potential for data that improves public services, protects workers from data power imbalances and delivers cutting-edge scientific research, while also building trust for consumers and citizens”.

Perhaps a bit platitudinous (would anyone disagree with that desire?) but also perhaps an indication of the tone he will want to set in this new role.

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, political parties

Tagged as

July 16, 2024 · 8:34 am

“Mom, we have discussed this”

A few years ago Gwyneth Paltrow’s daughter Apple took to social media to gently berate her mother for posting an image (not this one) which included her: “You may not post anything without my consent”. I’ve no idea whether Apple has other fine qualities, but I admired her approach here.

I was reminded of it by the – also admirable – approach by the Prime Minister and his wife to their two children’s privacy. Remarkably, it appears that their names and photographs have so far been kept from publication. It’s doubtful that will be able to continue forever (in any case, the children are at or coming to an age where they can take their own decisions) but I like the marked contrast with how many senior politicians co-opt their children into their campaigning platform.

One of the concerns of the legislator, when GDPR was being drafted, was children’s rights: recital 65 specifically addresses the situation of where a child has consented to publication of their data online, but later wants it removed.

Although Gwyneth Paltrow’s publishing of her child’s image would likely have been out of the material scope of GDPR under Article 2(2)(a) (and quite possibly out of its territorial scope) the thrust of recital 38 should apply generally: “Children merit specific protection with regard to their personal data, as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data”.

[Image licensed under CC BY-NC 4.0, creator not stated. Image altered to obscure children’s faces]

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 children, consent, Data Protection, GDPR, Privacy, UK GDPR

Tagged as , ,

July 14, 2024 · 11:34 am

Based

For reasons I found myself browsing the privacy notices on the websites of some data protection consultancies this morning. In a large number of cases, where they address the situation of a potential client (which is highly likely to be a corporate entity) instructing them, they say/imply that they will process the personal data of people working for that potential client under the lawful basis of “contract”.

As well as this being, er, wrong, it concerns me for a couple of reasons.

First, why it’s wrong.

Article 5(1)(a) of the UK GDPR obliges a controller to process personal data lawfully. Article 6(1) provides a list of bases of which at least one must be met for processing to be lawful. The basis at Article 6(1)(b) is “processing is necessary for the performance of a contract…”.

I fear that many people stop there (in fact, I fear more that they don’t look at the actual law, and merely refer to some template or notes that were wrong in the first place). But there’s a reason I put an ellipsis: the full lawful basis is “processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract”.

A service contract with a corporate entity does not constitute the sort of contract which is dealt with by Article 6(1)(b).

The reason this really concerns me is that if these consultancies can’t get this fundamental point right in their own documentation, they are presumably advising clients along similar lines.

Such advice might well be negligent. Assuming the consultancies have professional indemnity insurance, it might be affected by matters like this. And there might be notification obligations arising if they become aware of the fact that they’ve given incorrect, and possibly negligent, advice.

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, privacy notice, UK GDPR

Tagged as , ,

July 3, 2024 · 8:05 pm

Data protection v Defamation

[Sometimes I will upload posts I make on LinkedIn to this blog, because they’re easier to archive here: however they’re a bit more “conversational” than usual]

Can (or in what circumstances can) a data protection claim be brought on the basis that processing involves harm to reputation of a sort which, more orthodoxically*, would be brought in defamation?

His Honour Justice Parkes has refused an application by Dow Jones to strike out a data protection erasure claim (with an associated compensation claim) on the grounds that in reality it is a “statute-barred defamation complaint dressed up as a claim in data protection, and brought in data protection to avoid the rules which apply to defamation claims” (the application was also on Jameel grounds).

The judge says he “cannot see how [the claimants] can be summarily denied access to the court to make [their] case, employing a cause of action which is legitimately open to them… simply because in the past they have repeatedly threatened to claim in defamation, or because the claim is heavily based (as it is) on considerations of harm to reputation, or because, had they brought the claim in defamation, it would have faced very difficult obstacles”.

HHJ Parkes notably (ie this needs to go to trial) says that “the state of the law on the recoverability of damages for injury to reputation in non-defamation claims is uncertain and in flux” and that it is “unsuitable for determination on a summary application and probably requires the attention of an appellate court”.

It will be very interesting if this now makes it to trial. But never hold your breath on that folks.

[*yes, I did intend to coin the most awkward adverb possible]

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, defamation, erasure, journalism, judgments, Uncategorized

Tagged as ,

July 1, 2024 · 10:57 am

Can you stop election candidates sending you post?

During every recent general election campaign I can remember, there have been social media posts where people complain that they’ve received campaign material sent to them, by name, in the post. Electoral law (whether one likes it or not) permits a candidate to send, free of charge, one such item of post regardless of whether the recipient has objected to postal marketing, in general or specific terms. This right is contained in section 91 of The Representation of the People Act 1983. So, if you don’t like it, lobby your new MP in a few weeks’ time to get it changed.

Given that it’s always a topic of contention, I welcome the Information Commissioner’s Office’s publishing of guidance (including on the “one item of post” point) for the public on “The General Election and my personal data – what should I expect?”

What the guidance does not address, however, is a conflict of laws point. Article 21(2-3) of the UK GDPR create an absolute right to object to direct marketing and a consequent absolute obligation on a person not to process personal data for direct marketing purposes upon receipt of an objection. So how does this talk with the right given to electoral candidates to send one such communication?

Tim Turner has written on this point, in his “DPO Daily”, and says “I don’t think the Representation of the People Act trumps the DP opt-out right”, but – on this rare occasion – I think I disagree with him. This is because section 3(1) of the Retained EU Law (Revocation and Reform) Act 2023 provides that retained direct EU legislation – such as the UK GDPR – must be read and given effect in a way which is compatible with all domestic enactments, and, insofar as it is incompatible with them, those domestic enactments prevail.

So, the short answer to the title of this blog is “no” (although they can only send you just one personally addressed item).

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, elections, Information Commissioner, marketing, political parties, UK GDPR

Tagged as , , ,