Category Archives: GDPR

An Open Letter to Jacob Rees-Mogg

Dear Mr Rees-Mogg

I suspect you and I wouldn’t agree on many things, but, before I moved into private practice I spent many years in the public sector. I saw many examples of efficient and inefficient working there (as well as countless dedicated officers who rarely had time to be sitting at their desks when senior management deigned to visit).

So, despite our different worldviews, and in the spirit of helping improve the efficiency of the offices of Members of Parliament, may I make a couple of suggestions about data protection compliance?

First, you said recently, before the European Scrutiny Committee, that constituents who come to see you at surgery are asked to sign a two-page disclaimer. Nothing in our data protection law requires this (in fact, expecting them to sign one is likely to be contrary to those laws). You should give anyone whose personal data you collect certain information, generally in the form of a notice, but that’s just a matter of being fair and transparent – there’s no reason at all to require a signature or a disclaimer. You could even just refer them to a notice on your own website (your current one is rather well hidden). That should save you a bit of time and money.

Second, at the same hearing, you were concerned that you needed to delete files on constituents prematurely. Again, this appears to be a misapprehension on your part. Personal data should be kept for as long as is necessary in relation to the purpose for which it was collected: if you still need it, you keep it. There – another efficiency tip!

Third, and more generally, I do find that there is a lot of misunderstanding of data protection law. It has a dual objective – to offer protection to individuals and to allow for free movement of data (both of which are obviously subject to qualifications and provisos). I don’t pretend that the law couldn’t do with some revisions, and I’ve even spoken to some of the people helping with the reform programme to suggest a few. But in general, it’s quite possible to run the public bodies and businesses efficiently and also comply with the data protection law – but I fear that training and awareness of that law have been, and continue to be, handled rather inefficiently at government level.

Yours
Jon Baines

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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Filed under Data Protection, GDPR, not-entirely-serious, parliament, Uncategorized

COVID booster messages and the law

GET BOOSTED NOW Every adult needs a COVID-19 booster vaccine to protect against Omicron. Get your COVID-19 vaccine or booster. See NHS website for details

On Boxing Day, this wording appears to have been sent as an SMS in effect to every mobile telephone number in the UK. The relevant government web page explains that the message is part of the national “Get Boosted Now” campaign to protect against the Omicron variant of COVID-19. The web page also thanks the Mobile Network Operators for “their assistance in helping deliver the vitally important Get Boosted Now message”.

It is inevitable that questions may get raised raised about the legality of the SMSs under data protection law. What is important to note is that, although – to the extent that the sending involved the processing of personal data – the GDPR may apply (or, rather, the UK GDPR) the relevant law is actually the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”). Under the doctrine of lex specialis where two laws govern the same situation, the more specific rules will prevail over more general rules. Put another way, if the more specific PECR can justify the sending of the SMSs, then the sending will also be justified under the more general provisions of UK GDPR.

Regulation 16A of PECR (inserted by a 2015 amendment), provides that where a “relevant communications provider” (in this case a Mobile Network Operator) is notified by a government minister (or certain other persons, such as chief constables) that an “emergency” has occurred, is occurring or is about to occur, and that it is expedient to use an emergency alert service, then the usual restrictions on the processing of traffic and location data can be disregarded. In this instance, given the wording on the government website, one assumes that such a notification was indeed made by a government minister under regulation 16A. (These are different emergency alerts to those proposed to be able to be sent under the National Emergency Alert system from 2022 which will not directly involve the mobile network operators.)

“Emergency” is not defined in PECR, so presumably will take its definition here from section 1(1)(a) of the Civil Contingencies Act 2004 – “an event or situation which threatens serious damage to human welfare in a place in the United Kingdom”.

The effect of this is that, if the SMSs are legal under PECR, they will also be legal under Article 6(1)(c) and 6(1)(e) of the UK GDPR (on the grounds that processing is necessary for compliance with a legal obligation to which the controller is subject, and/or necessary for the performance of a task carried out in the public interest).

There is an interesting side note as to whether, even though the SMSs count as emergency alerts, they might also be seen as direct marketing messages under regulations 22 and 23 of PECR, thus requiring the content of the recipient before they could be sent. Under the current guidance from the Information Commissioner (ICO), one might argue that they would be. “Direct marketing” is defined in the Data Protection Act 2018 as “the communication (by whatever means) of advertising or marketing material which is directed to particular individuals” and the ICO defines it further by saying that this “covers any advertising or marketing material, not just commercial marketing. All promotional material falls within this definition, including material promoting the aims of not-for-profit organisations”. Following that line of thought, it is possible that the Omicron SMSs were both emergency alerts and direct marketing messages. This would be an odd state of affairs (and one doubts very much that a judge – or the ICO, if challenged on this – would actually agree with its own guidance and say that these SMSs were indeed direct marketing messages). The ICO is in the process of updating its direct marketing guidance, and might be well advised to consider the issue of emergency alerts (which aren’t covered in the current consultation document).

[Edited to add: I don’t think what I say above necessarily covers all the legal issues, and no doubt there are aspects of this that could have been done better, but I doubt very much there is any substantive legal challenge which can be made.]

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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Filed under communications data, consent, Data Protection, Data Protection Act 2018, GDPR, Information Commissioner, PECR, UK GDPR

Journalist has to seek pro bono support to enforce subject access request

My firm Mishcon de Reya is acting for John Pring, stalwart editor of Disability News Service, who has been seeking access to his personal data from DWP for more than a year. The ICO upheld his complaint but (see this blog, passim) said it wouldn’t take steps to require DWP to comply.

More here, and here.

As a result of the latest letter, and media coverage, ICO has said it is reopening the case.

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Filed under access to information, DWP, GDPR, human rights, Information Commissioner, subject access, UK GDPR

UK adequacy confirmed

To no great final surprise, the European Commission has adopted its adequacy decisions in respect of the UK.

Here’s a piece by me on the Mishcon de Reya website.

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Filed under adequacy, Data Protection, Europe, GDPR, international transfers, law enforcement

New Model Clauses – a Mishcon podcast

My colleagues, partners Adam Rose and Ashley Winton, discuss the new European Commission Standard Contractual Clauses announced on 4 June 2021. I honestly can’t think of two better people to discuss what they mean.

Initial Reactions: New Standard Contractual Clauses (mishcon.com)

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Filed under adequacy, Brexit, consistency, Data Protection, data sharing, EDPB, Europe, GDPR, international transfers, Schrems II

ICO not compliant with post-Schrems II data protection law?

In which I finally receive a reply to my complaint about ICO’s Facebook page.

The issue of the transfer of personal data to the US has been the subject of much debate and much litigation. In 2015 the Court of Justice of the European Union (CJEU) struck down one of the then key legal mechanisms (“Safe Harbor”) for doing so. And in 2020 the CJEU did so with its successor, “Privacy Shield”. Both cases were initiated by complaints by lawyer and activist Max Schrems, and focused on the transfer of data from the EU to the US by Facebook.

Put simply, European data protection law, in the form of the GDPR and (as we must now talk about the UK in separate terms) UK data protection law, in the form of UKGDPR, outlaw the transfer of personal data to the US (or any other third country), unless the level of protection the data would receive in the EU, or the UK, is “not undermined” (see Chapter V of and recital 101 of GDPR/UKGDPR).

In “Schrems II” – the 2020 case – the CJEU not only struck down Privacy Shield – it effectively also laid down rules which needed to be followed if the alternative mechanisms, for instance using “standard contractual clauses” were to be used for transfers of personal data. Following the judgment, the European Data Protection Board (EDPB) issued guidance in the form of FAQs, which recommended an “assessment, taking into account the circumstances of the transfers, and supplementary measures you could put in place”. The EDPB guidance was subsequently endorsed by the UK’s own Information Commissioner’s Office (ICO)

The EDPB has recommended that you must conduct a risk assessment as to whether SCCs provide enough protection within the local legal framework, whether the transfer is to the US or elsewhere

What struck me as odd in all this is that the ICO themselves have a Facebook page. Given that Facebook’s own data governance arrangements involve the transfer of EU and UK users’ data to the US, and given that ICO don’t just operate their page as a newsletter, but actively encourage users to comment and interact on their page, it seemed to me that ICO were enabling the transfer of personal data by Facebook to the US. But even further than that, another CJEU judgment has previously made clear that operators of corporate Facebook pages may well function as a controller under the GDPR/UKGDPR, where they set parameters on the page. The Wirtschaftsakademie case held that – in the case of someone operating a “fan page”

While the mere fact of making use of a social network such as Facebook does not make a Facebook user a controller jointly responsible for the processing of personal data by that network, it must be stated, on the other hand, that the administrator of a fan page hosted on Facebook, by creating such a page, gives Facebook the opportunity to place cookies on the computer or other device of a person visiting its fan page, whether or not that person has a Facebook account.

By extension, it seemed to me, the ICO were in this position with their page.

So I put the point to them. After four months, and some chasing, I received a reply which not only confirmed my understanding that they are, and accept that they are, a controller, but that, nearly a year on from the Schrems II decision, they have not finished reviewing their position and have not updated their privacy notice to reflect their controller status in respect of their Facebook processing. (They also say that their legal basis for processing is “Article 6 (1) (e) of UK GDPR, public task” because “as a regulator we have a responsibility to promote good practice and engage with the public at large about data protection issues via commonly used platforms”, but I’d observe that they fail to give any attention to the proportionality test that reliance on this condition requires, and fail to point to the justification in domestic law, as required by Article 6.)

What the ICO response doesn’t do is actually respond to me as a data subject in respect of my complaint nor explain how they are complying with the international data transfer provisions of Chapter V of the GDPR/UKGDPR, and whether they have conducted any sort of transfer impact assessment (one presumes not).

As I said in my original complaint to ICO, I am aware that I might be seen as being mischievous, and I’m also aware I might be seen as having walked ICO into a trap. Maybe I am, and maybe I have, but there’s also a very serious point to be made. The cost to UK business of the Schrems II decision has been enormous, in terms of the legal advice sought, the internal governance reviews and risk assessments undertaken, and the negotiating or novation of contracts. At the same time the business and legal uncertainty is significant, with many wondering about their exposure to legal claims but also (and especially) to regulatory enforcement. If, though, the regulator is not complying with the relevant law, ten months on from the judgment (and five months on from my raising it with them as a concern) then what are controllers meant to do? And where do they turn to for guidance on the regulatory approach?

THE ICO RESPONSE

Firstly, it may be helpful to explain that following the findings of the CJEU in Wirtschaftsakademie, we started a review of the transparency information we provide to visitors of the page. The review was delayed when Schrems11 decision was issued as we needed to consider the impact of the judgement on any transfer element to the US.

We agree that as the Facebook page administrator, we are processing personal data of the visitors of our page and therefore we are controllers for this information. We process the names of the users as they appear on their Facebook profiles and any personal data they may share through their comments on our posts or via messages to us. We process this information in reliance on Article 6 (1) (e) of UK GDPR, public task. We consider that, as a regulator we have a responsibility to promote good practice and engage with the public at large about data protection issues via commonly used platforms.

For the cookies and similar technologies, Facebook is responsible for setting the cookies, when you visit our Facebook page.

We also receive anonymous information from Facebook in the form of aggregate statistics of all those who visit our page, regardless of whether they have a Facebook account or not. In line with the findings of the CJEU in Wirtschaftsakademie we are joint controllers with Facebook for this information. We process this information under Article 6 (1) (e) as well. The Insights include information on page viewings, likes, sharing of posts, age range, the device used and how it was accessed and breakdown of demographics. All Insights are received from Facebook by the ICO in aggregate format. Our PN will updated shortly to reflect the above information.

Like other regulators, the ICO is currently reviewing its position on international transfers following the judgment in Schrems II. As part of that review, it will, amongst other things, consider the questions that you have raised about the ICO’s use of Facebook. The ICO intends to publish its guidance on how UK organisations should address the question of international transfers, in due course, and will act in accordance with its guidance. That work is still in progress, and it will be published in due course.

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

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Filed under adequacy, data sharing, EDPB, facebook, GDPR, Information Commissioner, international transfers, privacy notice, privacy shield, safe harbor, Schrems II, UK GDPR

You what?

Twice in recent months the outgoing Information Commissioner, Elizabeth Denham, has given speeches including these words

Data protection law was born in the 1970s out of a concern that the potential from emerging technology would be lost if we didn’t embrace innovation.

I don’t know what she means. Does anyone else?

Studies I’m aware of more generally see data protection law arising, from the 1960s through to the early 1980s, out of a combination of: increasing awareness of and focus on fundamental human rights; an understanding that use of computers would cause an exponential increase in the ability to process information; a desire that concerns about the preceding two should not lead to unnecessary barriers to international trade.

(See, for example, the UK 1972 Report of the Committee on Privacy, chaired by Kenneth Younger, and the UK 1978 Report of the Committee on Data Protection chaired by Sir Norman Lindop. See, especially, the 1980 OECD Guidelines and the 1981 Council of Europe Convention 108.)

Whatever Ms Denham’s words mean, they miss the foundational status of human rights in modern data protection law. And that is a glaring omission. Article 1 of the UKGDPR is clear – data protection law now, as it always has

protects fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data

There’s nothing wrong with embracing innovation (I do it myself). But let’s not misstate history.

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Filed under Data Protection, GDPR, human rights, Information Commissioner, UK GDPR

Gov says “no” to UK GDPR opt-out actions but…

A post by me on the Mishcon de Reya website – the government has declined to bring into operation Article 80(2) of the (UK) GDPR, but does that mean that the Supreme Court will be more likely to uphold the Court of Appeal judgment in Lloyd v Google?

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Filed under Data Protection, Data Protection Act 2018, DCMS, GDPR, UK GDPR

UK GDPR Resource

My firm Mishcon de Reya have created a version of the UK’s post-Brexit version of GDPR as there isn’t yet an official version. What’s more, we’ve added in links to the Recitals, and made it freely available.

The announcement is here. The actual UK GDPR is here.

Ain’t we kind?

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Filed under Data Protection, GDPR, UK GDPR

ICO and Article 27 representative liability

The ever-entertaining (but more importantly, ever-illuminating) Tim Turner has made available a recording of a webinar he did recently on the subject of representatives under Article 27 of the EU GDPR and the UK GDPR. Such representatives are required to be designated by controllers or processors who are outside the relevant jurisdiction, but who are subject to the extra-territorial provisions of Article 3(2) of EU GDPR or UK GDPR (thus, under Article 27 EU GDPR, a company outside the EU but offering goods or service to, or monitoring the behaviour of, data subjects in the EU, must appoint a representative in the EU, and under Article 27 UK GDPR, a company outside the UK but offering goods or service to, or monitoring the behaviour of, data subjects in the UK, must appoint a representative in the UK).

Tim’s webinar deals, in part, with what is expected of representatives, but also touches on their potential liability, and he points to – but doesn’t actually address – a remarkable assertion on the website of the Information Commissioner’s Office (ICO)

The EDPB’s view is that supervisory authorities are able to initiate enforcement action (including fines) against a representative in the same way as they could against the controller or processor that appointed them.

I describe this as remarkable, because it seems to completely misrepresent the guidance (of the European Data Protection Board) to which it refers (and links).

The issue of representative liability is an important one – many companies offer a contracted service under which they will act as a representative, and a commercial evaluation of such a service will inevitably need to consider whether being a representative exposes oneself to the possibility of regulatory action. Recital 80 of the EU GDPR and the UK GDPR says “The designated representative should be subject to enforcement proceedings in the event of non-compliance by the controller or processor” and much debate is there to be had on what it means. But the EDPB’s view is pretty clear, and it’s nothing like the view attributed to it by the ICO

The GDPR does not establish a substitutive liability of the representative in place of the controller or processor it represents in the Union. It should however be noted that the concept of the representative was introduced precisely with the aim of facilitating the liaison with and ensuring effective enforcement of the GDPR against controllers or processors that fall under Article 3(2) of the GDPR. To this end, it was the intention to enable supervisory authorities to initiate enforcement proceedings through the representative designated by the controllers or processors not established in the Union. This includes the possibility for supervisory authorities to address corrective measures or administrative fines and penalties imposed on the controller or processor not established in the Union to the representative… [emphasis added]

(It goes on to say that a representative will be directly liable only to the extent that it is infringing its direct obligations – namely to provide information to a supervisory authority under Article 58(1)(a) of GDPR, and to maintain a record of processing activities under Article 30.)

Whether the ICO’s assertion represents what it thinks a proper reading of the UK GDPR (including recital 80) should be, is an interesting question. The EDPB is, of course, no part of the UK GDPR regulatory and legal scheme, so ICO is free to disregard its views. What it shouldn’t be free to do though, really, is to attribute to the EDPB a position totally at odds with what the EDPB actually says.

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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Filed under Data Protection, EDPB, EU representative, GDPR, Information Commissioner, UK GDPR