Category Archives: GDPR

There’s nothing like transparency…

…and this is nothing like transparency

Those of us with long memories will remember that, back in 2007, in those innocent days when no one quite knew what the Freedom of Information Act 2000 (FOIA) really meant, the Information Commissioner’s Office (ICO), disclosed some of its internal advice (“Lines to Take” or “LTTs”) to its own staff about how to respond to questions and enquiries from members of the public about FOIA. My memory (I hope others might confirm) is that ICO resisted this disclosure for some time. Now, the advice documents reside on the “FOIWiki” pages (where they need, in my opinion, a disclaimer to the effect that some of the them at least are old, and perhaps out-of-date).

Since 2007 a number of further FOIA requests have been made for more recent LTTs – for instance, in 2013, I made a request, and had disclosed to me, a number of LTTs on data protection matters.

It is, therefore, with some astonishment, that I note that a recent FOIA request to ICO for up-to-date LTTs – encompassing recent changes to data protection law – has been refused, on the basis that, apparently, disclosure would, or would be likely to, inhibit the free and frank exchange of views for the purposes of  deliberation, and would otherwise prejudice, or would be likely otherwise to prejudice, the effective conduct of public affairs. This is problematic, and concerning, for a number of reasons.

Firstly, the exemptions claimed, which are at section 36 of FOIA, are the statute’s howitzers – they get brought into play when all else fails, and have the effect of flattening everything around them. For this reason, the public authority invoking them must have the “reasonable opinion” of its “qualified person” that disclosure would, or would be likely to, cause the harm claimed. For the ICO, the “qualified person” is the Information Commissioner (Elizabeth Denham) herself. Yet there is no evidence that she has indeed provided this opinion. For that reason, the refusal notice falls – as a matter of law – at the first hurdle.

Secondly, even if Ms Denham had provided her reasonable opinion, the response fails to say why the exemptions are engaged – it merely asserts that they are, in breach of section 17(1)(c) of FOIA.

Thirdly, it posits frankly bizarre public interest points purportedly militating against disclosure, such as that the LTTs “exist as part of the process by which we create guidance, not as guidance by themselves”, and “that ICO  staff should have a safe space to provide colleagues with advice for them to respond to challenges posed to us in a changing data protection landscape”, and – most bizarre of all – “following a disclosure of  such notes in the past, attempts have been made to utilise similar documents to undermine our regulatory procedures” (heaven forfend someone might cite a regulator’s own documents to advance their case).

There has been such an enormous amount of nonsense spoken about the new data protection regime, and I have praised ICO for confronting some of the myths which have been propagated by the ignorant or the venal. There continues to be great uncertainty and ignorance, and disclosing these LTTs could go a long way towards combatting these. In ICO’s defence, it does identify this as a public interest factor militating in favour of disclosure:

disclosure may help improve knowledge regarding the EIR, FOIA or  the new data protection legislation on which the public desire information as evidenced by our increase in calls and enquiry handling

And as far as I’m concerned, that should be the end of the matter. Whether the requester (a certain “Alan Shearer”) chooses to challenge the refusal is another question.

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, Freedom of Information, GDPR, Information Commissioner, transparency

The wheels of the Ministry of Justice

do they turn so slowly that they’ll lead to the Lord Chancellor committing a criminal offence?

On 21 December last year, as we were all sweeping up the mince piece crumbs, removing our party hats and switching off the office lights for another year, the Information Commissioner’s Office (ICO) published, with no accompanying publicity whatsoever, an enforcement notice served on the Secretary of State for Justice. The notice drew attention to the fact that in July 2017 the Ministry of Justice (MoJ) had had a backlog of 919 subject access requests from individuals, some of which dated back to 2012. And by November 2017 that had barely improved – to 793 cases dating back to 2014.

I intended to blog about this at the time, but it’s taken me around nine months to retrieve my chin from the floor, such was the force with which it dropped.

Because we should remember that the exercise of the right of subject access is a fundamental aspect of the fundamental right to protection of personal data. Requesting access to one’s data enables one to be aware of, and verify the lawfulness of, the processing. Don’t take my word for it – look at recital 41 of the-then applicable European data protection directive, and recital 63 of the now-applicable General Data Protection Regulation (GDPR).

And bear in mind that the nature of the MoJ’s work means it often receives subject access requests from prisoners, or others who are going through or have been through the criminal justice system. I imagine that a good many of these horrendously delayed requests were from people with a genuinely-held concern, or grievance, and not just from irritants like me who are interested in data controllers’ compliance.

The notice required MoJ to comply with all the outstanding requests by 31 October 2018. Now, you might raise an eyebrow at the fact that this gave the MoJ an extra eight months to respond to requests which were already incredibly late and which should have been responded to within forty days, but what’s an extra 284 days when things have slipped a little? (*Pseuds’ corner alert* It reminds me of Larkin’s line in The Whitsun Weddings about being so late that he feels: “all sense of being in a hurry gone”).

Maybe one reason the ICO gave MoJ so long to sort things out is that enforcement notices are serious things – a failure to comply is, after all, a criminal offence punishable on indictment by an unlimited fine. So one notes with interest a recent response to a freedom of information request for the regular updates which the notice also required MoJ to provide.

This reveals that by July this year MoJ had whittled down those 793 delayed cases to 285, with none dating back further than 2016. But I’m not going to start hanging out the bunting just yet, because a) more recent cases might well be more complex (because the issues behind them will be likely to be more current, and therefore potentially more complex, and b) because they don’t flaming well deserve any bunting because this was, and remains one of the most egregious and serious compliance failures it’s been my displeasure to have seen.

And what if they don’t clear them all by 31 October? The notice gives no leeway, no get-out – if any of those requests extant at November last year remains unanswered by November this year, the Right Honourable David Gauke MP (the current incumbent of the position of Secretary of State for Justice) will, it appears, have committed a criminal offence.

Will he be prosecuted?

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 access to information, Data Protection, Directive 95/46/EC, GDPR, human rights, Information Commissioner, Ministry of Justice, Uncategorized

GDPR – an unqualified right to rectification?

Can FCA – or any data controller – any longer argue that it’s too expensive to have to rectify inaccurate personal data?

Amidst all the hoo-ha about the General Data Protection Regulation (GDPR) in terms of increased sanctions, accountability requirements and nonsense about email marketing, it’s easy to overlook some changes that it has also (or actually) wrought.

One small, but potentially profound difference, lies in the provisions around accuracy, and data subjects’ rights to rectification.

GDPR – as did its predecessor, the 1995 Data Protection Directive – requires data controllers to take “every reasonable step” to ensure that, having regard to the purposes of the processing, personal data which are inaccurate are erased or rectified without delay. Under the Directive the concomitant data subject right was to obtain from the controller, as appropriate the rectification, erasure or blocking of data. Under Article 16 of GDPR, however, there is no qualification or restriction of the right:

The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her.

I take this to mean that, yes, a controller must in general only take every reasonable step to ensure that inaccurate data is rectified (the “proactive obligation”, let us call it), but, when put on notice by a data subject exercising his or her right to rectification, the controller MUST rectify – and there is no express proportionality get-out (let us call this the “reactive obligation”).

This distinction, this significant strengthening of the data subject’s right, is potentially significant, it seems to me, in the recently-reported case of Alistair Hinton and the Financial Conduct Agency (FCA).

It appears that Mr Hinton has, for a number of years, been pursuing complaints against the FCA over alleged inaccuracies in its register of regulated firms, and in particular over an allegation that

a register entry which gave the impression both him [sic] and his wife were directors of a firm which the regulator had publicly censured

This puts into rather simple terms what appears to be a lengthy and complex complaint, stretching over several years, and which has resulted in three separate determinations by the Financial Regulators Complaints Commissioner (FRCC) (two of which appear to be publicly available). I no doubt continue to over-simplify when I say that the issue largely turns on whether the information on the register is accurate or not. In his February 2017 determination the FRCC reached the following conclusions (among others)

You and your wife have been the unfortunate victims of an unintended consequence of the design of the FSA’s (and now FCA’s) register, coupled with a particular set of personal circumstances;

…Since 2009 the FSA/FCA have accepted that your register entries are misleading, and have committed to reviewing the register design at an appropriate moment;

Although these findings don’t appear to have been directly challenged by the FCA, it is fair to note that the FCA are reported, in the determinations, as having maintained that the register entries are “technically and legally correct”, whilst conceding that they are indeed potentially misleading.

The most recent FRCC determination reports, as does media coverage, that the Information Commissioner’s Office (ICO) is also currently involved. Whilst the FRCC‘s role is not to decide whether the FCA has acted lawfully or not, the ICO can assess whether or not the FCA’s processing of personal data is in accordance with the law.

And it occurs to me that the difference here between the Directive’s “reactive obligation” and GDPR’s “reactive obligation” to rectify inaccurate data (with the latter not having any express proportionality test) might be significant, because, until now, FCA has apparently relied on the fact that correcting the misleading information on its register would require system changes costing an estimated £50,000 to £100,000, and the FRCC has not had the power to challenge FCA’s argument that the cost of “a proper fix” was disproportionate. But if the Article 16 right is in general terms unqualified (subject to the Article 12(5) ability for a controller to charge for, or refuse to comply with, a request that is manifestly unfounded or excessive), can FCA resist a GDPR application for rectification? And could the ICO decide any differently?

Of course, one must acknowledge that there is a general principle of proportionality at European law (enshrined in Article 5 of the Treaty of the European Union) so a regulator, or a court, cannot simply dispense with the concept. But there was clearly an intention by European legislature not to put an express qualification on the right to rectification (and by extension the reactive obligation it places on controllers), and that will need to be the starting point for any assessment by said regulator, or court.

 

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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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 21(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