Category Archives: GDPR

GDPR doesn’t always mean “opt in”

TL;DR – the law says that when you’re buying something from them companies only have to offer you an opt out from marketing. GDPR hasn’t changed this.

I see a lot of criticism of companies on social media by people who accuse the former of not complying with the General Data Protection Regulation (GDPR). Here’s an example:

But the criticism is generally misguided. GDPR does not itself deal directly with direct marketing (other than to provide for an unqualified right to opt out of it (at Article 22(3)) and a statement in one of the recitals to the effect that the processing of personal data for the purposes of direct marketing may be regarded as carried out for a legitimate interest).

The operative law in the UK regarding electronic direct marketing is, and remains, The Privacy and Electronic Communications (EC Directive) Regulations 2003 (which implement a 2002 European Directive).

These provide that one cannot send direct marketing to an individual subscriber* by unsolicited “electronic mail” (which these days largely boils down to email and SMS) unless the recipient has consented or unless the sender

has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient…the direct marketing is in respect of that person’s similar products and services only…and the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his contact details for the purposes of such direct marketing, at the time that the details were initially collected, and, where he did not initially refuse the use of the details, at the time of each subsequent communication.

In plain language, this means that when you buy, or enter into negotiations to buy, a product or service from someone, the seller only has to offer an “opt out” option for subsequent electronic marketing. Nothing in GDPR changes this.

*”individual subscriber” means the person who is a party to a contract with a provider of public electronic communications services for the supply of such services- in effect, this is likely to be someone using their personal email address, and not a work one).

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.

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Filed under consent, Data Protection, GDPR, marketing, PECR

It’s all about the fineszzzzz

It can be unwise to make too much of reported and/or throwaway remarks, but I’m going to look at a recent reported, and possibly throwaway, remark by a senior manager from the Information Commissioner’s Office (ICO) at a recent Law Society conference on the General Data Protection Regulation (GDPR).

Giving “A perspective from the ICO” Richard Nevinson, Group Manager for Policy and Engagement, was reported by the Law Society Gazette to have said, on the subject of potential administrative fines under GDPR

If a breach warranted a fine of £30,000 under the Data Protection Act it probably warrants a similar fine under GDPR

This perhaps doesn’t at first blush sound that notable: the Commissioner herself – Elizabeth Denham – has been at pains, over the months leading up to GDPR coming into direct effect, to stress that, although the maximum fine will increase from £500,000 to €20m or 4% of annual global turnover (whichever is larger), such fines are not her focus:

Predictions of massive fines under the GDPR that simply scale up penalties we’ve issued under the Data Protection Act are nonsense

(despite this, somecommentators have continued to employ such “nonsense”).

What Nevinson said though, goes further than anything I’ve seen so far from the ICO. Because, if what he is reported to have said is correct, it would mean that we should see no change in frequency or amount of fines, unless there is a contravention on an unprecedented scale. The highest fine levied under the existing Data Protection Act 1998 (DPA) has been £400,000 (twice – once to Talk Talk and once to Carphone Warehouse) – only 80% of the current maximum. This means that the ICO cannot feel that the current maximum sets a cap which frustrates them by preventing them from issuing higher fines. One would assume, therefore, that the ICO would (must?) see GDPR’s legislative intent as being to “scale up” fines in some way. But no – says Nevinson – £X under DPA will equate to £X under GDPR.

Following that line of argument, as we have never seen a fine of £500,000 under DPA we will not see one of that size (or higher) under GDPR, unless a contravention emerges that is worse than anything seen before.

I may be wildly over-analysing what he was reported to have said, but I thought it noteworthy enough to blog about it at 06:00 in the morning, so I thought you might too.

Oh, and Nevinson might not be right or might not have been accurately reported, and I definitely might not be right. So you’d be silly to pay too much attention, and you certainly shouldn’t forget about the risks that fines may represent under GDPR.

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.

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Filed under 7th principle, Data Protection, GDPR, Information Commissioner, monetary penalty notice

The “GDPR consent” email I’d like to receive

“Dear Jon

You know us. We’re that firm you placed an order with a few months ago. You may remember that at the time we took your order we explained we were going to send occasional marketing emails to you about similar products and services, but you could opt out then, and at any subsequent point.

We know that since 2003 (with the Privacy and Electronic Communications Regulations) (PECR) it’s been unlawful to send unsolicited marketing emails except in circumstances like those above.

We’re contacting you now because we’ve noticed a lot of competitors (and other firms) who are either utterly confused or utterly misrepresenting a new law (separate to PECR) called the General Data Protection Regulation (GDPR). They’re claiming it means they have to contact you to reconfirm your consent to receive marketing emails.

GDPR actually says nothing of the sort. It does explain what “consent” means in data protection terms in a slightly more strict way, but for companies like us, who’ve respected our customers and prospective customers all along, it makes no difference.

In fact, the emails you’re getting from those companies, asking you to “reconsent”, are probably actually direct marketing emails themselves. And if the companies don’t already have your consent to send them they may well be breaking the law in sending them. If you think we’re exaggerating, look at the fine the Information Commissioner’s Office (ICO) levied on Honda last year.

In fact, you’d do well to look at the ICO’s website – it’s got some good stuff on this, both for customers like you, and for companies who are confused by this.

It all really boils down to treating customers well, and not assuming you can send direct electronic marketing without actually looking at what the law says.

So yes, this is a marketing email, and yes, it is lawful, and yes, it is more than a little pompous.”

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.

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Filed under consent, GDPR, Information Commissioner, marketing, PECR, spam

On the breach

Failure to notify the ICO in a timely manner of a personal data breach under PECR carries a £1000 fixed penalty notice – why not something similar under wider data protection law?

When the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”) were amended in 2011 to implement the Citizens’ Rights Directive, an obligation was placed upon providers of a public electronic communications service  (“service providers”) to notify personal data breaches to the Information Commissioner’s Office (ICO) “without undue delay”, and in 2013 article 2(2) of European Commission Regulation 611/2013 provided , in terms, that “without undue delay” would mean “no later than 24 hours after the detection of the personal data breach, where feasible”. The 2011 amendment regulations also gave the ICO the power to serve a fixed penalty notice of £1000 on a service provider which failed to comply with notification obligations.

Thus it was that in 2016 both EE and Talk Talk were served with such penalties, with the latter subsequently unsuccessfully appealing to the Information Tribunal, and thus it was that, last week, SSE Energy Supply were served with one. The SSE notice is interesting reading – the personal data breach in question (defined in amended regulation 2 of PECR as “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 in connection with the provision of a public electronic communications service”) consisted solely of the sending of one customer email (containing name and account number) to the wrong email address, and it appears that it was reported to the ICO two days after SSE realised (so, effectively, 24 hours too late). If this appears harsh, it is worth noting that the ICO has discretion over whether to impose the penalty or not, and, in determining that she should, the Commissioner took into account a pour encourager les autres argument that

the underlying objective in imposing a monetary penalty is to promote compliance with PECR. The requirement to notify…provides an important opportunity…to assess whether a service provider is complying with its obligations under PECR…A monetary penalty in this case would act as a general encouragement towards compliance…

As any fule kno, the looming General Data Protection Regulation (“GDPR”) expands to all data controllers this obligation to notify the ICO of qualifying personal data breaches. Under GDPR the definition is broadly similar to that in PECR (“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”) and a breach qualifies for the notification requirements in all cases unless it is “unlikely to result in a risk to the rights and freedoms of natural persons”. Under GDPR, the window for notification is 72 hours.

But under GDPR, and under the Data Protection Bill currently in Parliament, there is no provision for similar fixed penalty notices for notification failures (although, of course, a failure to notify a breach could constitute a general infringement under article 83, attracting a theoretical non-fixed maximum fine of €10m or 2% of global annual turnover). Is Parliament missing a trick here? If the objective of the PECR fixed penalty notice is to promote compliance with PECR, then why not a similar fixed penalty notice to promote compliance with wider data protection legislation? In 2016/17 the ICO received 1005 notifications by service providers of PECR breaches (up 63% on the previous year) and analysing/investigating these will be no small task. The figure under GDPR will no doubt be much higher, but that is surely not a reason not to provide for a punitive fixed penalty scheme for those who fail to comply with the notification requirements (given what the underlying objective of notification is)?

I would be interested to know if anyone is aware of discussions on this, and whether, as it reaches the Commons, there is any prospect of the Data Protection Bill changing to incorporate fixed penalties for notification failures.

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.

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Filed under Breach Notification, Data Protection, Data Protection Bill, enforcement, GDPR, Information Commissioner, monetary penalty notice, PECR

My small business advice…let’s be blunt.

In recent months I’ve seen plenty of articles and comments, on regular and social media, to the effect that either the government, or the Information Commissioner’s Office (ICO), or both, must do more to educate businesses about the General Data Protection Regulation (GDPR) and to help them comply with its requirements.

My response to this is blunt: when setting up and when running a business, it is for the owner/directors/board to exercise appropriate diligence to understand and comply with the laws relating to the business. Furthermore, the costs of this diligence and compliance have to be factored into any new or ongoing business plan. Even more bluntly – if you can’t afford to find out what the applicable law is, and you can’t afford to comply, then you haven’t got a viable business.

(Less bluntly, there is of course a wealth of information, mostly from the ICO, about what GDPR means and how to comply. Ultimately, however, data protection law is principles-based and risk-based and no one but those responsible for running it can reasonably say what compliance means in the context of that particular business).

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.

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Serious DCMS error about consent and data protection 

I blogged on Monday about the government Statement of Intent regarding the forthcoming Data Protection Bill. What I missed at the time was an accompanying release on the Department for Digital, Culture,  Media and Sport (DCMS) website.  Having now seen it, I realise why so many media outlets have been making a profoundly misleading statement about consent under the new data protection law: they have lifted it directly from DCMS. The statement is

The Data Protection Bill will require ‘explicit’ consent to be necessary for processing sensitive personal data

It should only take a second to realise how wrong this is: sensitive personal data will include information about, among other things, health, and criminal convictions. Is the government proposing, say, that, before passing on information about a critically injured patient to an A&E department, a paramedic will have to get the unconscious patient’s explicit consent? Is it proposing that before passing on information about a convicted sex offender to a local authority social care department the Disclosure and Barring Service will have to get the offender’s explicit consent? 

Of course not – it’s absolute nonsense to think so, and the parliamentary drafters of the forthcoming Bill would not dream of writing the law in such a way, not least because it would contravene our obligations under the General Data Protection Regulation (GDPR) around which much of the Bill will be based. GDPR effectively mirrors the existing European Data Protection Directive (given effect in our existing Data Protection Act 1998). Under these laws, there are multiple circumstances under which personal data, and higher-category sensitive personal data can be processed. Consent is one of those. But there are, in Article 9(2) of GDPR, nine other conditions which permit the processing of special category data (the GDPR term used to replicate what is called “sensitive personal data” under existing domestic data protection law), and GDPR affords member states the power to legislate for further conditions.

What the DCMS release should say is that when consent is legitimately relied upon to process sensitive personal data the consent must be explicit. I know that sentence has got more words on it than the DCMS original, but that’s because sometimes a statement needs more words in order to be correct, and make sense, rather than mislead on a very important point regarding people’s fundamental rights.

I tweeted Matt Hancock, the minister, about the error, but with no answer as yet. I’ve also invited DCMS to correct it. The horse has already bolted though, as a Google news search for the offending phrase will show. The Information Commissioner’s Office has begun a series of pieces addressing GDPR myths, and I hope this is one they’ll talk about, but DCMS themselves should still issue a corrective, and soon.

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.

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Filed under consent, Data Protection, DCMS, GDPR, Information Commissioner, Uncategorized

DCMS Statement of Intent on the Data Protection Bill

Not so much a Statement of Intent, as a Statement of the Bleeding Obvious

The wait is not quite over. We don’t yet have a Data Protection Bill, but we do have a Statement of Intent from DCMS, explaining what the proposed legislation will contain. I though it would be helpful to do a short briefing note based on my very quick assessment of the Statement. So here it is

IT’S JUST AN ANNOUNCEMENT OF ALL THE THINGS THE UK WOULD HAVE TO IMPLEMENT ANYWAY UNDER EUROPEAN LAW

By which I mean, it proposes law changes which will be happening in May next year, when the General Data Protection Regulation becomes directly applicable, or changes made under our obligation to implement the Police and Crime Directive. In a little more detail, here are some things of passing interest, none of which is hugely unexpected.

As predicted by many, at page 8 it is announced that the UK will legislate to require parents to give consent to children’s access to information society services (i.e. online services) where the child is under 13 (rather than GDPR’s default 16). As the UK lobbied to give member states discretion on this, it is no surprise.

Exemptions from compliance with majority of data protection law when the processing is for the purposes of journalism will remain (page 19). The Statement says that the government

believe the existing exemptions set out in section 32 strike the right balance between privacy and freedom of expression

But of potential note is the suggestion that

The main difference will be to amend provisions relating to the ICO’s enforcement powers to strengthen the ICO’s ability to enforce the re-enacted section 32 exemptions effectively

Without further details it is impossible to know what will be proposed here, but any changes to the existing regime which might have the effect of decreasing the size of the media’s huge carve-out will no doubt be vigorously lobbied against.

There is confirmation (at pp17 and 18) that third parties (i.e. not just criminal justice bodies) will be able to access criminal conviction information. Again, this is not unexpected – the regime for criminal records checks for employers etc was unlikely to be removed.

The Statement proposes a new criminal offence of intentionally or recklessly re-identifying individuals from anonymised or pseudonymised data, something the Commons Science and Technology Committee has called for. Those who subsequently process such data will also be guilty of an offence. The details here will be interesting to see – as with most privacy-enhancing technology, in order for anonymisation to be robust it needs to stress-tested – such testing will not be effective if those undertaking do so at risk of committing an offence, so presumably the forthcoming Bill will provide for this.

The Bill will also introduce an offence of altering records with intent to prevent disclosure following a subject access request. This will use the current mechanism at section 77 of the Freedom of Information Act 2000. Whether that section itself will be amended (time limits for prosecutions militate against its effectiveness) remains unknown.

I also note that the existing offence of unlawfully obtaining personal data will be widened to those who retain personal data against the wishes of the data controller, even where it was initially obtained lawfully. This will probably cover those situations where people gather or are sent personal data in error, and then refuse to return it.

There is one particular howler at page 21, which suggests the government doesn’t understand what privacy by design and privacy by default mean:

The Bill will also set out to reassure citizens by promoting the concept of “privacy by default and design”. This is achieved by giving citizens the right to know when their personal data has been released in contravention of the data protection safeguards, and also by offering them a clearer right of redress

Privacy by design/default is about embedding privacy protection throughout the lifecycle of a project or process etc., and has got nothing at all to do with notifying data subjects of breaches, and whether this is a drafting error in the Statement, or a fundamental misunderstanding, it is rather concerning that the government, which makes much of “innovation” (around which privacy by design should be emphasised), fails to get this right.

So that’s a whistle stop tour of the Statement, ignoring all the fluff about implementing things which are required under GDPR and the Directive. I’ll update this piece in due course, if anything else emerges from a closer reading.

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.

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Filed under Data Protection, GDPR, Information Commissioner, journalism

GDPR could cost Rotherham man more than the world’s entire money

In rather shocking news I can reveal that Roy Flynn, 58, of Windsor Road, Wath-upon-Dearne, is potentially facing fines of more than £60 trillion, under the EU General Data Protection Regulation. 

The regulations, which will become law next May, and will require consent for everything anyone does ever, leave data controllers liable for fines of €20 million every time they are breached. 

Mr Flynn is known to be an active social media user, and a member of several local clubs, including the Wombwell Top Gear Appreciation Society, the Mexborough Real Ale Club and the Brampton Bierlow Fat Men on Expensive Bicycles Group. He regularly makes personal comments about people on web articles, posts Facebook updates about fellow members of these societies and repeatedly fails to use “blind copy” when sending group emails. It has also been reported that he uses an unencrypted Dell Inspiron laptop with anti-virus software that was last updated in August 2007.

Cyber security experts are now warning Mr Flynn that unless he downloads their GDPR White Paper and purchases their unique data discovery tool he will be liable for fines in excess of the total amount of money in the entire world. It is being suggested that this could cause significant disruption to his community activities.

However, when contacted by the author Mr Flynn would only comment “Bugger off you soft Southern weirdo”. 

The Information Commissioner’s Office has said “we are aware of this incident and are making enquiries”. We expect to hear the outcome of these enquiries within the next decade.

For similar news see here, here, here, here etc 

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.

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Filed under GDPR, satire

An enforcement gap?

ICO wants 200 more staff for GDPR , but its Board think there’s a risk it will instead be losing them

The General Data Protection Regulation (GDPR) is, without doubt, a major reconfiguring of European data protection law. And quite rightly, in the lead-up to its becoming fully applicable on 25 May next year, most organisations are considering how best they can comply with its obligations, and, where necessary, effecting changes to achieve that compliance. As altruistic as some organisations are, a major driver for most is the fear that, under GDPR, regulatory sanctions can be severe. Regulators (in the UK this is the Information Commissioner’s Office (ICO)) will retain powers to force organisations to do, or to stop, something (equivalent to an enforcement notice under our current Data Protection Act 1998 (DPA)), but they will also have the power to levy civil administrative fines of up to €20 million, or 4% of annual global turnover. Much media coverage has, understandably, if misleadingly, focused on these increased “fining” powers (the maximum monetary under the DPA is £500,000). I use the word “misleadingly”, because it is by no means clear that regulators will use the full fining powers available to them: GDPR provides regulators with many other options (see Article 58) and recital 129 in particular states that measures taken should be

appropriate, necessary and proportionate in view of ensuring compliance with this Regulation [emphasis added]

Commentators stressing the existence of these potentially huge administrative fines should be referred to these provisions of GDPR. 

But in the UK, at least, another factor has to be born in mind, and that is the regulator’s capacity to effectively enforce the law. In March this year, the Information Commissioner herself, Elizabeth Denham, told the House of Lords EU Home Affairs Sub-Committee that with the advent of GDPR she was going to need more resource

With the coming of the General Data Protection Regulation we will have more responsibilities, we will have new enforcement powers. So we are putting in new measures to be able to address our new regulatory powers…We have given the government an estimate that we will need a further 200 people in order to be able to do the job.

Those who rather breathlessly reported this with headlines such as “watchdog to hire hundreds more staff” seem to have forgotten the old parental adage of “I want doesn’t always get”. For instance, I want a case of ’47 Cheval Blanc delivered to my door by January Jones, but I’m not planning a domestic change programme around the possibility.

In fact, the statement by Denham might fall into a category best described as “aspirational”, or even “pie in the sky”, when one notes that the ICO Management Board recently received an item on corporate risk, the minutes from which state that

Concern was expressed about the risk of losing staff as GDPR implementation came closer. There remained a risk that the ICO might lose staff in large numbers, but to-date the greater risk was felt to be that the ICO could lose people in particular roles who, because of their experience, were especially hard to replace.

The ICO has long been based in the rather upmarket North West town of Wilmslow (the detailed and parochial walking directions from the railway station to the office have always rather amused me). There is going to be a limited pool of quality candidates there, and ICO pays poorly: current vacancies show case officers being recruited at starting salary of £19,527, and I strongly suspect case officers are the sort of extra staff Denham is looking at.

If ICO is worried about GDPR being a risk to staff retention (no doubt on the basis that better staff will get poached by higher paying employers, keen to have people on board with relevant regulatory experience), and apparently can’t pay a competitive wage, how on earth is it going to retain (or replace) them, and then recruit 200 more, from those sleepy Wilmslow recruitment fairs?

I write this blogpost, I should stress, not in order to mock or criticise Denham’s aspirations – she is absolutely right to want more staff, and to highlight the fact to Westminster. Rather, I write it because I agree with her, and because, unless someone stumps up some significant funding, I fear that the major privacy benefits that GDPR should bring for individuals (and the major sanctions against organisations for serious non-compliance) will not be realised.

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.

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

Making even more criminals

Norfolk Police want your dashcam footage. Do you feel lucky, punk?

I wrote recently about the change to the Information Commissioner’s Office (ICO) registration process, which enables domestic users of CCTV to notify the ICO of that fact, and pay the requisite fee of £35. I noted that this meant that

it is the ICO’s apparent view that if you use CCTV in your household and capture footage outside the boundaries of your property, you are required to register this fact publicly with them, and pay a £35 fee. The clear implication, in fact the clear corollary, is that failure to do so is a criminal offence.

I didn’t take issue with the correctness of the legal position, but I went on to say that

The logical conclusion…here is that anyone who takes video footage anywhere outside their home must register

I even asked the ICO, via Twitter, whether users of dashcams should also register, to which I got the reply

If using dashcam to process personal data for purposes not covered by domestic exemption then would need to comply with [the Data Protection Act 1998]

This subject was moved from the theoretical to the real today, with news that Norfolk Constabulary are encouraging drivers using dashcams to send them footage of “driving offences witnessed by members of the public”.

Following the analyses of the courts, and the ICO, as laid out here and in my previous post, such usage cannot avail itself of the exemption from notification for processing of personal data “only” for domestic purposes, so one must conclude that drivers targeted by Norfolk Constabulary should notify, and pay a £35 fee.

At this rate, the whole of the nation would eventually notify. Fortunately (or not) the General Data Protection Regulation becomes directly applicable from May next year. It will remove the requirement to give notification of processing. Those wishing, then, to avoid the opprobrium of being a common criminal have ten months to send their fee to the ICO. Others might question how likely it is that the full force of the law will discover their criminality, and prosecute, in that short time period.

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.

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Filed under Data Protection, GDPR, Information Commissioner, police, Uncategorized