Category Archives: Data Protection

June 6, 2024 · 7:45 am

The demise of portmanteau data breach claims

Many defendants in data protection proceedings will have experienced claims which also plead a misuse of private information (MPI). Often, on the face of things, the latter appears to add nothing to the data protection claim, but there can be procedural and costs/other financial implications. Importantly, where claimants have secured after-the-event (ATE) insurance, premiums can be recovered from losing defendants (as there is an exception for certain claims, including MPI ones, to the general rule introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, by which ATE premiums became generally irrecoverable between parties). This can be perceived as a factor which might impel defendants to settle otherwise weak claims.

The practice of bundling data protection and MPI claims (sometimes with a bonus breach of confidence claim) in “data breach” proceedings was struck a blow in 2021, when Mr Justice Saini, in Warren v DSG, held that, as both MPI and breach of confidence require there to have been a “use”, a “positive action”, they do not impose a data security obligation on a defendant, or create liability where the defendant was, instead, alleged to have failed to do something.

This inevitably led to a drop in claims pleading MPI (and breach of confidence) in data security cases, but not a complete stop: after all – I imagine some claimant lawyers thought, a claim can still be pleaded as a MPI claim – even if it might not look like one (following Warren v DSG).

However, in a costs judgment from September last year, but only recently published, Deputy Costs Judge Roy held that a “spurious” (as opposed to a “genuine”) MPI claim (in Saini J’s characterisation “an unconvincing attempt to shoehorn the facts of the data breach into the tort of MPI”) can’t avail itself of the ATE premium irrecoverability exception. (The claim was against Equiniti, but seems to be separate to the recent attempted group litigation against the same defendant.)

I suspect the story is not entirely over. Claimants will quite possibly say “yes, spurious MPI claims can’t be shoehorned into data protection claims, but this one – Judge – is not spurious on the facts”. Nonetheless, the days of portmanteau data breach claims seem to disappearing into the past.

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 security, judgments, litigation

Tagged as data protection, litigation

June 1, 2024 · 8:36 am

Disastrous data protection advice in child protection proceedings

I am only going to link at the foot of this post to the recent judgment in the Family Court, as it is long, contains distressing and graphic references to alleged sexual offences and how a school and a local authority dealt with the allegations and only deals in passing with the issue I raise in this post. Please be aware of that.

However, the issue is of real importance.

The reason for referring to it is the extraordinary, and extraordinarily worrying, references in the judgment to a discussion a deputy head teacher had with the nine year old child in question. The judgment records the teacher’s evidence that, although

she took notes of the discussion she destroyed any notes that she had made. This appeared to be in accordance with a school-wide misunderstanding of data protection guidance. She fairly admitted that after a year she could only guess at those notes now

The judge stresses that she

“[does] not criticise GG – she was a caring and conscientious teacher who was doing her best and believed she was following advice and good practice. She lacked specialist training and some of the advice was unhelpful. I have carefully considered the problems with her record of this discussion, and I am mindful that these challenges add to the difficulty of appraising the reliability of what she recorded.”

[nb, this was said not solely in the context of the destruction of the notes]

The London Borough involved recognised, during the course of the proceedings, “the importance of addressing a wide range of gaps and concerns that emerged during the course of this hearing”, and the judge invited the parties to draw up an agreed list of issues for the Council to consider and provide a response to as a positive problem-solving exercise. Among these agreed issues was this

“Contemporaneous notes need to be taken when a child makes any allegation of physical, sexual or emotional abuse against a third party…. It needs to be made clear within the policy that contemporaneous notes ought to be kept and stored securely (electronically if possible). This includes any handwritten notes even if, only key words are noted down and later entered onto any electronic system. THIS DOES NOT INFRINGE GDPR.”

Those final words resound, even if they shouldn’t need saying.

Prior to GDPR, there were certainly a multitude of misunderstandings about data protection, but the idea that personal data should not be recorded, or should be quickly destroyed, is one of the most pernicious of misunderstandings that seems to have emerged since GDPR – in part from terrible advice and training given by people who shouldn’t have ever been engaged to train the public sector. I implore those involved in training and advising in these complex areas of social care and education to consider the import and impact of the advice they give.

Finally, the importance and meaning of the first word of the third data protection principle is often overlooked. Yes, it’s the “data minimisation” principle, but personal data must still be adequate.

This is the judgment.

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, GDPR, local government, retention, UK GDPR

Tagged as data protection, GDPR, local government

April 30, 2024 · 5:58 am

ICO applies public sector fine approach to charity

The Information Commissioner’s Office has fined the CENTRAL YOUNG MEN’S CHRISTIAN ASSOCIATION (YMCA) of London £7500.

The penalty notice is not published at the time of writing (nor anything else yet on the ICO website), although the fine is said to have already been paid, and the press release issued by the ICO says the fine was issued for “a data breach where emails intended for those on a HIV support programme were sent to 264 email addresses using CC instead of BCC, revealing the email addresses to all recipients. This resulted in 166 people being identifiable or potentially identifiable”.

The press release also says that the fine was reduced from an initially-recommended £300,000, “in line with the ICO’s public sector approach”. When I queried the rather obvious point that a charity is not a public authority, an ICO spokesman initially told me that “as Central YMCA is a charity that does a lot of good work, they engaged with us in good faith after the incident happened, recognised their mistake immediately and have made amends to their processing activities and they paid the fine in full straight away, we applied the spirit of the public sector approach to them even though they’re not strictly a public sector body”.

This led to a further follow-up query from me because as a matter of logic and timing, how could the fact that a controller “paid the fine in full straight away” be a mitigating factor in reducing the amount of the fine to be paid? The further response was “The point was that they engaged fully and subsequently paid the fine in full, thus confirming our position that they were engaging and taking the breach seriously. The calculation comes before the payment which has no bearing on the assessed amount.”

I’m not quite sure what to make of this. Can any controller which “does a lot of good work”, engages with the ICO in good faith and remedies processing activities also benefit from a 3900% decrease in fine from an originally-recommended sum? What does “a lot of good work” mean? Is it something only charities do? What about private companies with a strong ESG ethos, or who make significant charitable contributions?

[this post was originally published on my LinkedIn page.]

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, Information Commissioner, LinkedIn Post, monetary penalty notice, Uncategorized

Tagged as data protection, ICO

April 27, 2024 · 6:41 am

Douglas Adams and the EIR

[I tend to do a lot my posting these days on LinkedIn, and less here. But the combination of LinkedIn’s poor search capability and my memory means I forget about some things I’ve written about that I’d quite like to remember. So I’m going to put some of them on this blog to remind me. This one is on a doozy of a Tribunal judgment.]

This Information Tribunal judgment about whether photographs of planning notices should be disclosed begins with a long quote from The Hitchhiker’s Guide to the Galaxy, and gets even more extraordinary as it goes on.

By the end of the judgment the judge has called the Information Commissioner’s Office’s decision a “pitiful failure to understand the scope and significance of material in the public domain and the role of data protection in protecting rights”, uses the term “bankruptcy” to describe the approach to the matter by both the ICO and Shropshire Council, and appears to have declared the Council’s handling of not just the individual planning application, but its planning policy as a whole unlawful (the judgment says, for instance that the council’s implementation of The Town and Country Planning (Development Management Procedure) (England) Order 2015 “failed to accord local residents their rights”).

This last point surely illustrates the Tribunal straying well beyond its jurisdiction, and it is difficult to see how it will escape having its judgment appealed. That’s actually a pity, because the underlying point in it is that the ICO’s approach failed to understand that data protection law has to be considered “in relation to its function in society and be balanced against other fundamental rights” (recital 4 GDPR) and failed to consider the Environmental Information Regulations’ context, whereby access to environmental information is one of the three pillars of the Aarhus Convention – the others being public participation in decision-making, and access to justice in environmental matters.

And even if the judgment gets appealed, I would hope the ICO acknowledges the key point that data protection rights don’t automatically trump all other rights.

https://www.bailii.org/uk/cases/UKFTT/GRC/2024/330.html

Leave a comment

Filed under Data Protection, Environmental Information Regulations, LinkedIn Post

Tagged as EIR

March 1, 2024 · 7:02 am

John Edwards evidence to the Angiolini inquiry

On 29 February Lady Elish Angiolini published the first report from her inquiry into how off-duty Metropolitan police officer Wayne Couzens was able to abduct, rape and murder Sarah Everard.

Information Commissioner John Edwards contributed to the inquiry, and his evidence is cited at 4.320 (the paragraph is quoted below). It deals with the profoundly important (and perennially misunderstood) issue of data-sharing within and between police forces.

Although for obvious reasons the identity and content of some witness evidence to the inquiry is being kept anonymous, there should be no obvious reason that Mr Edwards’s is, and I hope that the Information Commissioner’s Office will, in addition to publishing his press statement, also publish any written evidence he submitted. It would also be good to know the details of the work Mr Edwards says his office is doing, and continuing, with the police, in this context.

In discussions with senior leaders of relevant organisations, the Inquiry was told that gaps in information-sharing between human resources, recruitment, professional
standards and vetting teams – and, indeed, between forces themselves – were a
significant barrier to capturing a clear picture of officers. The Inquiry heard from different sources, including senior leaders, that there are significant barriers to
information-sharing. Some cite data privacy and protection laws as a reason not to
share information. However, in a discussion with the Information Commissioner, John Edwards, the Inquiry was assured that data protection law recognises that there are legitimate reasons for information-sharing, particularly given the powers attributed to police officers. Indeed, Mr Edwards suggested that data protection law is widely misunderstood and misconstrued, and highlighted a failure of training in this regard.

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 access to information, Data Protection, data sharing, Information Commissioner, police

Tagged as data protection, ICO, John Edwards, police

March 1, 2024 · 6:48 am

How did George Galloway come to send different canvassing info to different electors?

As electors went to the polls in the Rochdale by-election on 29 February, a few posts were made on social media showing the disparity between letters sent to different electors by candidate George Galloway. An example is here

On the face of it, Galloway appears to have hoped to persuade Muslim voters to vote for him based on his views on a topic or topics he felt would appeal to them, and others to vote for him based on his views on different topics.

It should be stressed that there is nothing at all wrong that in principle.

What interests me is how Galloway identified which elector to send which letter to.

It is quite possible that a candidate might identify specific roads which were likely to contain properties with Muslim residents. And that, also would not be wrong.

But an alternative possibility is that a candidate with access to the full electoral register, might seek to identify individual electors, and infer their ethnicity and religion from their name. A candidate who did this would be processing special categories of personal data, and (to the extent any form of automated processing was involved) profiling them on that basis.

Article 9(1) of the UK GDPR introduces a general prohibition on the processing of special categories of personal data, which can only be set aside if one of the conditions in Article 9(2) is met. None of these immediately would seem available to a candidate who processes religious and/or ethnic origin data for the purposes of sending targeted electoral post. Article 9(2)(g) provides a condition for processing necessary for reasons of substantial public interest, and Schedule One to the Data Protection Act 2018 gives specific examples, but, again, none of these would seem to be available: paragraph 22 of the Schedule permits such processing by a candidate where it is of “personal data revealing political opinions”, but there is no similar condition dealing with religious or ethnic origin personal data.

If such processing took place in contravention of the prohibition in Article 9, it would be likely to be a serious infringement of a candidate’s obligations under the data protection law, potentially attracting regulatory enforcement from the Information Commissioner, and exposure to the risk of complaints or legal claims from electors.

To be clear, I am not saying that I know how Galloway came to send different letters to different electors, and I’m not accusing him of contravening data protection law. But it strikes me as an issue the Information Commissioner might want to look into.

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.

3 Comments

Filed under access to information, Data Protection, Data Protection Act 2018, data sharing, Information Commissioner, political parties, UK GDPR

Tagged as data protection, DPA, ICO, politics

September 27, 2023 · 7:23 am

Soft regulation = poorer compliance?

The Information Commissioner’s Office (ICO) has published reprimands against seven separate organisations all of whom committed serious infringements of data protection law by inadvertently disclosing highly sensitive information in the context of cases involving victims of domestic abuse.

The ICO trumpets the announcement, but does not appear to consider the point that, until recently, most, if not all, of these infringements would have resulted in a hefty fine, not a regulatory soft tap on the wrist. Nor does it contemplate the argument that precisely this sort of light-touch regulation might lead to more of these sorts of incidents, if organisations believe they can act (or fail to act) with impunity.

I have written elsewhere about both the lack of any policy or procedure regarding the use of reprimands, and also about the lack of empirical evidence that a “no fines” approach works.

I think it is incumbent on the Information Commissioner, John Edwards, to answer this question: are you confident that your approach is not leading to poorer compliance?

The cases include

Four cases of organisations revealing the safe addresses of the victims to their alleged abuser. In one case a family had to be immediately moved to emergency accommodation.

Revealing identities of women seeking information about their partners to those partners.

Disclosing the home address of two adopted children to their birth father, who was in prison on three counts of raping their mother.

Sending an unredacted assessment report about children at risk of harm to their mother’s ex-partners.

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, Information Commissioner, monetary penalty notice, reprimand, UK GDPR

Tagged as DPA, ICO, John Edwards, UK GDPR

September 12, 2023 · 8:49 am

Arbitrary criminality and data protection

It shouldn’t be too controversial to state that to commit a criminal offence is a serious matter: although there are – obviously – different levels of severity, certain acts or omissions are so injurious to society as a whole that they warrant prosecution.

The majority of infringements of data protection law are not criminal offences, but, rather, contravention of civil law. But there are a few offences in the statutory scheme. Section 132 of the Data Protection Act 2018 (DPA) is one such. It says that it is an offence for the Information Commissioner, or a member of his staff, to disclose information

which—

(a)has been obtained by, or provided to, the Commissioner in the course of, or for the purposes of, the discharging of the Commissioner’s functions,

(b)relates to an identified or identifiable individual or business, and

(c)is not available to the public from other sources at the time of the disclosure and has not previously been available to the public from other sources,

However, it will not be an offence if the disclosure is made with “lawful authority”, and a disclosure is made with lawful authority only if and to the extent that

(a)the disclosure was made with the consent of the individual or of the person for the time being carrying on the business,

(b)the information was obtained or provided as described in subsection (1)(a) for the purpose of its being made available to the public (in whatever manner),

(c)the disclosure was made for the purposes of, and is necessary for, the discharge of one or more of the Commissioner’s functions,

(d)the disclosure was made for the purposes of, and is necessary for, the discharge of an EU obligation,

(e)the disclosure was made for the purposes of criminal or civil proceedings, however arising, or

(f)having regard to the rights, freedoms and legitimate interests of any person, the disclosure was necessary in the public interest.

This means that, for instance, if an individual or a business has given (willingly or under compulsion) information to the Commissioner for the purposes of a regulatory investigation, and the information is not already public, then the Commissioner must not disclose it, unless he has lawful authority to do so.

Where, also for instance, the Commissioner publishes a legal decision notice, or monetary penalty notice, or the like, this will ordinarily contain information of this kind, but the Commissioner can point to the lawful authority he has under section 132(2)(c) – namely that the disclosure was made for the purposes of, and is necessary for, the discharge of one or more of the Commissioner’s functions. No offence committed.

But section 132 is why the Commissioner’s Office might refuse, under the Freedom of Information Act 2000 (FOIA), to disclose information it has received from an individual or business. For instance, a notification report a controller has submitted pursuant to its “personal data breach” obligations under Article 33 UK GDPR. Here is an example. The ICO withholds the “breach report” in question, citing the exemption at section 44, because of the offence provisions at section 132 DPA.

Whether this is an over-cautious stance is one thing, but it is understandable.

What puzzles me, though, is the inconsistency, because elsewhere, in very similar circumstances, in response to a FOIA request, the ICO has disclosed a personal data report (albeit with redactions). Here, also.

If the Commissioner’s staff in the first example feel that they would commit an offence by disclosing the report, do the staff dealing with the second or third examples not feel that they would also?

One thing that should certainly not happen is claiming exemptions because it is easier to do so than not. I am not saying that has happened here, but there certainly seems to be inconsistency. And inconsistency, or uncertainty, about whether a regulator and his staff might commit a criminal offence is not a good 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.

Leave a comment

Filed under access to information, crime, Data Protection, Data Protection Act 2018, Freedom of Information, Information Commissioner

Tagged as crime, data protection, DPA, FOI, ICO

September 11, 2023 · 9:08 pm

When is a fundamental right no longer fundamental?

Answer – when Parliament approves legislation to remove it

Rather quietly, the government is introducing secondary legislation which will have the effect of removing the (admittedly odd) situation whereby the UK GDPR describes the right to protection of personal data as a fundamental right.

Currently, Article 1(2) of the UK GDPR says “This Regulation protects fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data”. For the purposes of the EU GDPR this makes sense (and made sense when the UK was part of the EU) because the Charter of Fundamental Rights of the European Union (“the Charter”) identifies the right to protection of personal data as a free-standing right.

However, the draft Data Protection (Fundamental Rights and Freedoms) (Amendment) Regulations 2023 will amend Article 1(2) of the UK GDPR so that it will simply say “This Regulation contributes to the protection of individuals’ fundamental rights and freedoms.”

The explanatory memorandum to the draft regulations states that

There is no direct equivalent to the right to the protection of personal data in the UK law. However, the protection of personal data falls within the right to respect for private and family life under Article 8 of the European Convention of Human Rights, which is enshrined in UK law by the Human Rights Act 1998. Data protection rights are also protected by UK GDPR, the Data Protection Act 2018 and will continue to be protected by the Data Protection and Digital Information Bill in our domestic legislation.

None of this addresses the point that the EU specifically decided, in the Charter, to separate the right to protection of personal data from the right to respect for a private and family life. One reason being that sometimes personal data is not notably, or inherently, private, but might, for instance, be a matter of public record, or in the public domain, yet still merit protection.

The explanatory memorandum also says, quite understandably, that the UK GDPR has to be amended so as to ensure that

references to retained EU rights and freedoms which would become redundant at the end of 2023 are replaced with references to rights under the European Convention on Human Rights (ECHR) which has been enshrined in the UK’s domestic law under the Human Rights Act 1998

Nonetheless, it was interesting for a while that the UK had a fundamental right in its domestic legislation that was uncoupled from its source instrument – but that, it seems, will soon be gone.

1 Comment

Filed under Data Protection, human rights, parliament, UK GDPR

Tagged as data protection, Human Rights

Category Archives: Data Protection

The demise of portmanteau data breach claims

ICO applies public sector fine approach to charity

Douglas Adams and the EIR

Arbitrary criminality and data protection

Blogroll

Recent Posts

Follow Blog via Email

RSS Links

Privacy Notice