ICO ignores its own FOI investigators

In the past I recall a few cases where the Information Commissioner’s Office (ICO) had to adjudicate on its own compliance with the Freedom of Information Act 2000 (FOIA). As a public authority, the ICO must comply with FOIA in the same way that all other public authorities must (fundamentally, by responding to a request within twenty working days). In a few cases, the ICO’s investigation of itself would even be slightly critical (along the lines of “you could have handled this a bit better”). But I have never, until now, seen a case like this one.

Extraordinarily, here we have a decision in which we see the ICO (as “the Commissioner”) berating itself (as “the ICO”) for…failing to reply to its own investigators. The notice gives the details:

On 18 May 2021, the complainant wrote to the ICO…and requested information…

The ICO acknowledged the request for information on 19 May 2021…

To date, a substantive response has not been issued…

The complainant contacted the Commissioner on 19 June 2021 to complain about the failure by the ICO to respond to his request…

On 5 July 2021, the Commissioner wrote to the ICO, reminding it of its responsibilities and asking it to provide a substantive response to the complainant within 10 working days…

Despite this intervention the ICO has failed to respond to the complainant.

As the notice says (indeed, as all such notices say), failure to comply may now result in the ICO making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court. How on earth would this work though? As a matter of law, could a regulator certify its own non-compliance to the High Court in this way?

What a bizarre situation.

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Filed under access to information, Freedom of Information, Information Commissioner

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

Recital 7 of the new SCCs – it’s a doozy

Post by me on the Mishcon de Reya website.

Everyone needs to understand the new model clauses for international transfers, and recital 7 is a red flag.

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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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Regulatory breach reporting webinar

My firm recently held a webinar on regulatory notification obligations. We had Laura Middleton, head of ICO’S breach reporting team, as well as me and a couple of colleagues.

The highlights of the recording are here: https://www.mishcon.com/news/tv/-self-reporting-regulators-advantages-pitfalls

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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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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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