Category Archives: privacy notice

Zero rating for fairness

It’s a long time since I took a flight, but when I used to do so, I too would have the experience, when purchasing items in airport shops, of being asked to produce my boarding pass and having it scanned by the retailer. I now know that the reason for this is, contrary to my assumptions, nothing to do with security, and everything to do with the retailer’s VAT pricing structure

I don’t particularly object to the practice itself, but what does concern me, from a privacy and data protection perspective, is the lack of information traditionally given to passengers about the reason for it, and what happens with the information gathered.

The third data protection principle, in Schedule 1 of the Data Protection Act 1998 (DPA) states, in relevant part, that personal data should be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. Is the processing by retailers compliant with their obligations under this principle?When retailers scan boarding passes they will be at least potentially collecting (“processing”) passengers’ names, flight numbers and travel destination. The last is the purpose of the exercise: if the passenger is travelling outside the European Union the purchase is zero-rates for the purposes of VAT. But is it necessary therefore to collect all the boarding pass data? Well, HMRC guidance suggests that it is:

Information from the boarding cards or travel documents presented by entitled passengers should be retained by retailers as part of their export evidence.

This suggests that, in order to satisfy any HMRC inspector that zero-rated purchases have been made legitimately, proof of the details of the purchase will need to be retained and provided. 

If that is the case then there’s a good argument that retailers could satisfy the requirements of the third DPA principle. But there is a more fundamental requirement, in the first Schedule One principle, to process personal data fairly, and fairness will not be achieved unless

in the case of data obtained from the data subject, the data controller ensures so far as practicable that the data subject has, is provided with, or has made readily available to him… [inter alia]…the purpose or purposes for which the data are intended to be processed

And there we are back to the start of this post: I didn’t know what the purpose was of scanning my boarding pass, and it’s very clear from the recent media coverage of the issue that many, probably most, passengers didn’t or don’t realise. In my view this, coupled with the retention of the data for HMRC purposes, renders the processing unfair and unlawful. Whether the relevant data controller is the retailer, who does the act, or HMRC, who appear to require it, is another question (it’s probable that they are acting as joint data controllers) but I think the Information Commissioner’s Office should take a look.

(Thanks to Rich Greenhill for pointing out the HMRC guidance).

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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Shameless

Only very recently I wrote about how the Liberal Democrats had been found by the Information Commissioner’s Officer (ICO) to have been in breach of their obligations under anti-spam laws (or, correctly, the ICO had determined it was “unlikely” the Lib Dems had complied with the law). This was because they had sent me unsolicited emails promoting their party without my consent, in contravention of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). The ICO told me that “we have written to the organisation to remind them of their obligations under the PECR and ensure that valid consent is obtained from individuals”.

Well, the reminder hasn’t worked: today I went on the Lib Dem site and noticed the invitation to agree that “The NHS needs an extra £8bn”. Who could disagree? There was a box to enter my email address and “back our campaign”. Which campaign did they mean? Who knows? I assumed the campaign to promote NHS funding, but there was no privacy notice at all (at least on the mobile site). I entered an email address, because I certainly agree with a campaign that the NHS needs an extra £8bn pounds, but what I certainly didn’t do was consent to receive email marketing.

Untitled

But of course I did…within eight hours I received an email from someone called Olly Grender asking me to donate to the Lib Dems. Why on earth would I want to do that? And a few hours later I got an email from Nick Clegg himself, reiterating Olly’s message. Both emails were manifestly, shamelessly, sent in contravention of PECR, only a couple of weeks after the ICO assured me they were going to “remind” the Lib Dems of the law.

Surely the lesson is the same one the cynics have told us over the years – don’t believe what politicians tell you.

And of course, only this week there was a further example, with the notorious Telegraph “business leaders” letter. The open letter published by the paper, purporting to come from 5000 small business owners, had in fact been written by Conservative Campaign Headquarters, and signatories  were merely people who had filled in a form on the Conservative party website agreeing to sign the letter but who were informed in a privacy notice that “We will not share your details with anyone outside the Conservative Party”. But share they did, and so it was that multiple duplicate signatories, and signatories who were by no means small business owners, found their way into the public domain. Whether any of them will complain to the ICO will probably determine the extent to which this might have been a contravention, not of PECR (this wasn’t unsolicited marketing), but of the Data Protection Act 1998, and the Conservatives’ obligation to process personal data fairly and lawfully. But whatever the outcome, it’s another example of the abuse of web forms, and the harvesting of email addresses, for the promotion of party political aims.

I will be referring the Lib Dems matter back to the ICO, and inviting them again (they declined last time) to take enforcement action for repeat and apparently deliberate, or reckless, contraventions of their legal obligations under PECR.

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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Labour’s “HowManyOfMe” – legitimate use of the electoral register?

Is Labour’s shiny new web widget “HowManyOfMe” compliant with the party’s obligations under electoral and ePrivacy law?

Regulations 102 and 106 of the Representation of the People (England and Wales) Regulations 2001 (as amended)mean that registered political parties can apply for a copy of the full electoral register, but they can only supply, disclose or make use of the information therein for “electoral purposes”. As far as I can see “electoral purposes” is nowhere defined, and, accordingly, I suspect it permits relatively broad interpretation, but, nevertheless, it clearly limits the use to which a political party can make use of electoral registration information.

With this in mind, it is worth considering whether the apparent use of such information by the Labour Party, in a new website widget, is a use which can be described as “for electoral purposes”. The widget in question invites people to submit their name (or indeed anyone else’s), email address and postcode and it will tell you how many voters in the country have that name. Thus, I find that there are 393 voters who have the name “Christopher Graham”. The widget then encourages users to register to vote. In small print underneath it says

in case you’re interested, this tool uses an aggregate figure from the electoral register and we’ve taken steps to protect the privacy of individuals

Well, I am interested. I’m interested to know whether this use of the electoral register is purely for electoral purposes. If it is, if its purpose is to encourage people to register to vote, then why does it need an email address? The widget goes on to say

The Labour Party and its elected representatives may contact you about issues we think you may be interested in or with campaign updates. You may unsubscribe at any point. You can see our privacy policy here.

But if they are using the electoral register to encourage people to give up email addresses which may then receive political marketing, surely this is stretching the use of “for electoral purposes” too far? Moreover, and despite the small print privacy notice, and the almost-hidden link to a generic privacy policy, any emails received by individuals will be likely to be sent in contravention of Labour’s obligations under The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), which give effect to the UK’s obligations under Directive 2002/58/EC. This is because regulation 22 of PECR prohibits, in terms, the sending of electronic direct marketing (and promotion of a political party constitutes such marketing) without the prior consent of the recipient. Consent, the Directive tells us, must be “a freely given specific and informed indication of the user’s wishes”.  A vague description, as the widget here gives us, of what may happen if one submits an email address, and a statement about unsubscribing, do not legitimise any subsequent sending of direct marketing.

The email address I used is one I reserve for catching spammers; I’ve not received anything yet, but I expect to do so. I would be prepared to argue that any email I receive cannot be said to relate to the electoral purpose which permit use of the electoral register, and will be sent in contravention of PECR.  As I said recently, one of the key battlegrounds in the 2015 general election will be online, and unless action is taken to restrain abuse of people’s personal information, things will get nasty.

1The legislation.gov.uk doesn’t provide updated (“consolidated”) versions of secondary legislation, so there’s no point in linking to their version of the regulations.

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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Online privacy – a general election battleground

It’s becoming increasingly clear that one of the key battlegrounds in the 2015 General Election will be online. The BBC’s Ross Hawkins reports that the Conservatives are spending large amounts each month on Facebook advertising, and Labour and UKIP, while not having the means to spend as much, are ramping up their online campaigning. But, as Hawkins says

the aim is not to persuade people to nod thoughtfully while they stare at a screen. They want consumers of their online media to make donations or, even better, to get their friends’ support or to knock on doors in marginal constituencies…[but] for all the novelties of online marketing, email remains king. Those Tory Facebook invoices show that most of the money was spent encouraging Conservative supporters to hand over their email addresses. Labour and the Conservatives send emails to supporters, and journalists, that appear to come from their front benchers, pleading for donations

I know this well, because in July last year, after growing weary of blogging about questionable compliance with ePrivacy laws by all the major parties and achieving nothing, I set a honey trap: I submitted an email address to the Conservative, Labour, LibDem, Green, UKIP, SNP and Plaid Cymru websites. In each case I was apparently agreeing with a proposition (such as the particularly egregious LibDem FGM example)  giving no consent to reuse, and in each case there was no clear privacy notice which accorded with the Information Commissioner’s Office’s Privacy Notices Code of Practice (I do not, and nor does the ICO, at least if one refers to that Code, accept that a generic website privacy policy is sufficient in case like this). Since then, the fictional, and trusting but naive, Pam Catchers (geddit??!!) has received over 60 emails, from all parties contacted. A lot of them begin, “Friend, …” and exhort Pam to perform various types of activism. Of course, as a fictional character, Pam might have trouble enforcing her rights, or complaining to the ICO, but the fact is that this sort of bad, and illegal, practice, is rife.

To be honest, I thought Pam would receive more than this number of unsolicited emails (but I’m probably more cynical than her). But the point is that each of these emails was sent in breach of the parties’ obligations under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) which demands that recipients of electronic direct marketing communications must have given explicit consent prior to the sending. By extension, therefore, the parties are also in breach of the Data Protection Act 1998 (DPA), which, when requiring “fair” processing of personal data, makes clear that a valid privacy notice must be given in order to achieve this.

The ICO makes clear that promotion by a political party can constitute direct marketing, and has previously taken enforcement action to try to ensure compliance. It has even produced guidance for parties about their PECR and DPA obligations. This says

In recent years we have investigated complaints about political parties and referendum campaigners using direct marketing, and on occasion we have used our enforcement powers to prevent them doing the same thing again. Failure to comply with an enforcement notice is a criminal offence.

But by “recent” I think they are referring at least six years back.

A data controller’s compliance, or lack thereof, with data protection laws in one area is likely to be indicative of its attitude to compliance elsewhere. Surely the time has come for the ICO at least to remind politicians that online privacy rights are not to be treated with contempt?

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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Lib Dems in breach of ePrivacy laws?

As I’ve written on several occasions recently, the sending of direct marketing emails without the consent of the recipient is, as a general principle, unlawful under European and domestic law.

The Information Commissioner’s Office (ICO) guidance makes clear that promotion of a political party, campaign or candidate is “direct marketing” for the purposes of the Privacy and Electronic Communication (EC Directive) Regulations 2003 (PECR):

We take a broad view of what constitutes marketing and are satisfied that it is not only the offer for sale of goods or services but also includes the promotion of the aims and ideals of any organisation including political campaigns.
On 20 July I noted this on the Liberal Democrats’ home page
 
libdem
A campaign to end Female Genital Mutilation is a worthy one (and not a party political issue) and one I’m happy to put my name to. However, I did have my suspicions, so set up a new email address, entered that into the box, and clicked “I agree”. There was no indication of what would happen with my email address once I had done this, although there was, at the very foot of the page, a small unobtrusive link to a “privacy policy” (of which more later).
 
What did happen was, firstly, and straight away, I received the following email
receipt1
 which was fair enough. At the foot of that email was this message
receipt
again, fair enough, and that should be the end of my engagement with the Lib Dems.
  
But, you will perhaps be unsurprised to hear, it wasn’t. Two days later I received this, from Lynn Featherstone MP
featherstone
which at least was on the subject of FGM, but I was surprised she considered herself my “friend”. And two days after that I found I’d made another friend:
nick
So, a few days after I’d expressed my support for a non-party-political campaign, I was on first name terms with a political party leader, who was sending me an unsolicited marketing email. Which takes us back to PECR, and consent, and my myriad previous blog posts.
 
I thought I’d check exactly what the Lib Dems website privacy policy says. Of course there’s the usual guff about taking privacy seriously, but it goes on to say
If you provide your email address…we may use the email address to send you further information in the future. You may at any point request not to receive such information any more.
And there it is, in clear terms – a statement of non-compliance with the law. They cannot, under regulation 22(2) of PECR, infer consent to receive marketing emails merely because someone has provided an email address. I will be complaining to the Lib Dems, and, if necessary, the Information Commissioner’s Office.

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Naming and shaming no shows is a no-no

I know a couple who run a restaurant. And I know how the problem of no-shows can cause great economic damage to restaurants. Failing to show up, or to cancel in advance, is, moreover, incredibly rude. But the response, which I only became aware of today, of naming and shaming the no-show customers on twitter is a risky and probably unlawful one for restaurateurs to take.

In the instance I saw this morning a London restaurant had apparently searched for the twitter account of a person who they thought had failed to show, and had openly tweeted their displeasure. He, however, had email proof that he had cancelled in advance. The restaurant investigated, accepted this, and apologised (and the customer accepted, so I’m not going to name either of the parties).

However, the restaurant was processing the personal data of the customer when it took his booking, and their use of that data would be limited to what the customer was told at the time, or what he might reasonably expect. So, unless they had a very odd privacy notice, their permitted processing purposes would not have extended to the naming and shaming of him for failing to turn up. Thus, it would seem to be a breach of at least the both the first and the second data protection principle. Moreover, the rather cavalier approach to customer data wouldn’t make one confident about other aspects of data protection compliance.

I really do sympathise with restaurateurs: one of the alternative approaches to no-shows and late cancellers is punitive cancellation fees but that also has its drawbacks and detractors. However, there are not many areas of commerce where companies would be able to get away with such apparently unfair and unlawful processing of their customer’s personal data: announcing that someone has failed to attend at a certain restaurant potentially indicates quite a bit about the person’s tastes, means and location. It’s a risky thing for a restaurateur to do, especially when, as with the restaurant I saw tweeting earlier today, they haven’t registered their processing with the Information Commissioner’s Office (which, I would emphasise, is a criminal offence).

 

 

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Privacy issues with Labour Party website

Two days ago I wrote about a page on the Labour Party website which was getting considerable social media coverage. It encourages people to submit their date of birth to find out, approximately, of all the births under the NHS, what number they were.

I was concerned that it was grabbing email address without an opt-out option. Since then, I’ve been making a nuisance of myself asking, via twitter, various Labour politicians and activists for their comments. I know I’m an unimportant blogger, and it was the weekend, but only one chose to reply: councillor for Lewisham Mike Harris, who, as campaign director for DontSpyOnUs, I would expect to be concerned, and, indeed, to his credit, he said “You make a fair point, there should be the ability to opt out”. Mike suggested I email Labour’s compliance team.

In the interim I’d noticed that elsewhere on the Labour website there were other examples of emails being grabbed in circumstances where people would not be sure about the collection. For instance: this “calculator” which purports to calculate how much less people would pay under Labour for energy bills, which gives no privacy notice whatsoever. Or even this, on the home page, which similarly gives no information about what will happen with your data

homepage

Now, some might say that, if you’re giving your details to “get involved”, then you are consenting to further contact. This is probably true, but it doesn’t mean the practice is properly compliant with data collection laws. And this is not unimportant; as well as potentially contributing to the global spam problem, poor privacy notices/lack of opt-out facilities at the point of collection of email address contribute to the unnecessary amassing of private information, and when it is done by a political party, this can even be dangerous. It should not need pointing out that, historically, and elsewhere in the world, political party lists have often been used by opposition parties and repressive governments to target and oppress activists. Indeed, the presence of one’s email on a party marketing database might well constitute sensitive personal data – as it can be construed as information on one’s political opinions (per section 2 of the Data Protection Act 1998).

So, these are not unimportant issues, and I decided to follow Mike Harris’s suggestion to email Labour’s compliance unit. However, the contact details I found on the overarching privacy policy merely gave a postal address. I did notice though that that page said

If you have any questions about our privacy policy, the information we have collected from you online, the practices of this site or your interaction with this website, please contact us by clicking here

But if I follow the “clicking here” link, it takes me to – wait for it – a contact form which gives no information whatsoever about what will happen if I submit it, other than the rather stalinesque

The Labour Party may contact you using the information you supply

And returning to the overarching privacy policy didn’t assist here – none of the categories on that page fitted the circumstances of someone contacting the party to make a general enquiry.

I see that the mainstream media have been covering the NHS birth page which originally prompted me to look at this issue. Some, like the Metro, and unsurprisingly, the Mirror, are wholly uncritical. The Independent does note that it is a clever way of harvesting emails, but fails to note the questionable legality of the practice. Given that this means that more and more email addresses will be hoovered up, without people fully understanding why, and what will happen with them, I really think that senior party figures, and the Information Commissioner, should start looking at Labour’s online privacy activities.

(By the way, if anyone thinks this is a politically-motivated post by me, I would point out that, until 2010, when I voted tactically (never again), I had only ever voted for one party in my whole life, and that wasn’t the Conservatives or the Lib Dems.)

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