Tag Archives: DPA

Data protection misunderstandings in court

There is something that distinguishes those who have practised data protection law for more than five years and those who have come to it more recently. The former are in possession of a secret. It is this: GDPR did not change the fundamentals of data protection.

Look at the keystones of the law – the data protection principles in Schedule One of the Data Protection Act of 1998 (the prior law) and in Article 5 UK GDPR (the current). They are effectively identical. And in fact, they have barely changed from the principles in the 1984 Data Protection Act, and those in the Council of Europe Data Protection Convention 108 of 1981.

Yet even in the courts one still sees from time to time the misconception that the GDPR rights and obligations were something fundamentally new.

An example is a recent case in the Employment Appeal Tribunal. The details of the case are not important for this post, but what is relevant is that the claimant employee argued that information about his previous employment history at the respondent employer (from 2008-2011) should not have been allowed in evidence. One argument in support of this was that the lengthy retention of this information was in breach of the employer’s data protection obligations (and the claimant had received correspondence from the Information Commissioner’s Office broadly agreeing with this).

But in response to this argument the respondent employer asserted that

Prior to [GDPR coming into effect on 25 May 2018] there was no right to erase. Accordingly, the period during which the respondent should arguably have taken steps to delete data was around nine months from this point until 28 February 2019.

This fails to recognise that, even if there was no express right to erasure prior to GDPR (n.b. there was certainly an implied right, as the European Court of Justice found in Google Spain) there was certainly an obligation on a data controller employer not to retain personal data for longer than was necessary (see paragraph 5 Schedule One to the 1998 Act).

The judge, however, accepted the respondent’s argument (although in all fairness to her she does point out that neither party took her to the legislation or the case law):

I accept that the ICO’s reference to retention being likely to breach data protection requirements, was (at its highest) concerned with the nine month period between the GDPR coming into effect and the claimant indicating an intention to commence litigation

That is not what the the quoted correspondence (at paragraph 17) from the ICO said, and it is not a correct statement of the law. If the period of retention of the data was excessive, there is no reason to say it was not in contravention of the prior law, as well as GDPR.

Ultimately, it is doubtful that this would have made much difference. As often in such proceedings, the relevance of the information to the matter was key:

in so far as the Respondent was in breach of data protection law for the nine month period I have referred to, it does not follow from this that the documentation was inadmissible in the [Employment Tribunal] proceedings

But one wonders if the judge might have taken a slightly different view of, instead, she had found that the Respondent was in fact in breach of data protection law for several years (rather than just nine months).

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.

Leave a comment

Filed under Data Protection, employment, GDPR, UK GDPR

ICO threatened Matt Hancock with £17.5m fine (sort of)

It’s well known that, under the UK GDPR, and the Data Protection Act 2018 (DPA), the Information Commissioner can fine a controller or a processor a maximum of £17.5m (or 4% of global annual turnover). Less well known (to me at least) is that he can fine any person, including you, or me, or Matt Hancock, the same, even if they are not a controller or processor.

Section 142 of the DPA empowers the Commissioner to serve “Information Notices”. These fall broadly into two types: those served on a controller or processor requiring them to provide information which the Commissioner reasonably requires for the purposes of carrying out his functions under the data protection legislation; and those requiring

any person to provide the Commissioner with information that the Commissioner reasonably requires for the purposes of—

(i)investigating a suspected failure of a type described in section 149(2) or a suspected offence under this Act, or

(ii)determining whether the processing of personal data is carried out by an individual in the course of a purely personal or household activity.

And by section 155(1) of the DPA, the Commissioner may serve a monetary penalty notice (aka “fine”) on any “person” who fails to comply with an Information Notice. That includes you, or me, or Matt Hancock. (Section 157(4) provides that the maximum amount is £17.5m, or 4% of global annual turnover – although I doubt that you, I, or Matt Hancock has an annual global turnover.)

All very interesting and theoretical, you might think. Well, so might Matt Hancock have thought, until an Information Notice (which the Commissioner has recently uploaded to the ICO website) dropped onto his figurative doormat last year. The Notice was in relation to the Commissioner’s investigation of the leaking of CCTV images showing the former Secretary of State for Health and Social Care and his former aide enjoying each other’s company. The investigation – which was into the circumstances of the leak, and not Matt Hancock’s conduct – concluded in April of this year, with the ICO deciding that there was insufficient evidence to justify further action. But the Notice states clearly at paragraph 7 that failure to comply is, indeed, punishable with a fine of up to £17.5m (etc.).

The Matt Hancock Notice admittedly addresses him as if he were a controller (it says the ICO is looking at his compliance with the UK GDPR) although I am not sure that is correct – Matt Hancock will indeed be a controller in respect of his constituency work, and his work as an MP outside ministerial duties, but the normal approach is that a ministerial department will be the relevant controller for personal data processed in the context of that department (thus, the Department for Health and Social Care shows as a controller on the ICO register of fee payers).

Nonetheless, the ICO also issued an Information Notice to Matt Hancock’s former aide (as well as to Helen Whateley MP, the Minister of State), and that one makes no mention of UK GDPR compliance or a suggestion she was a controller, but does also “threaten” a potential £17.5m fine.

Of course, realistically, no one, not even Matt Hancock, was really ever at risk of a huge fine (section 155(3) of the DPA requires the Commissioner to have regard to various factors, including proportionality), but it strikes me as a remarkable state of affairs that you, I or any member of the public caught up in a matter that leads to ICO investigation, and who might have relevant information, is as a matter of law vulnerable to a penalty of £17.5m if they don’t comply with an Information Notice.

Even Matt Hancock.

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.

Leave a comment

Filed under Data Protection, Data Protection Act 2018, Information Commissioner, information notice, monetary penalty notice, UK GDPR

Certainly uncertain – data protection reform developments

In recent weeks the future of data protection law in the UK has been not just hard to predict, but also hard to keep up with.

Since Brexit, the UK has had its own version of the EU’s GDPR, called, obviously enough, the “UK GDPR“. Then, on 18 July, a Data Protection and Digital Information Bill was presented in Parliament – it proposed some significant (but possibly not hugely so) changes to the current regime, but it retained the UK GDPR. It was scheduled to have its second reading in the House of Commons on 5 September, but this was postponed “to allow Ministers to consider the legislation further”.  

Following this, on 22 September, the Retained EU Law (Revocation and Reform) Bill was introduced. This appeared to propose the “sunsetting” (i.e. the repeal) of multiple data and information laws, including the UK GDPR, by the end of 2023.

The next development, on the first day of the Conservative Party conference, is the announcement by the Culture Secretary, Michelle Donelan, that

we will be replacing GDPR with our own business and consumer-friendly data protection system… Many…smaller organisations and businesses only in fact employ a few people. They don’t have the resources or money to negotiate the regulatory minefield that is GDPR. Yet right now, in the main, they’re forced to follow this one-size-fits-all approach.

She also suggested that businesses had suffered from an 8% reduction in profit from GDPR. It is not immediately clear where this figure comes from, although some have suggested that an Oxford Martin School paper is the source. This paper contains some remarkably complex equations. I have no competence in assessing, and no reason to doubt, the authors’ economic and statistical prowess, but I can say (with a nod to the ageless concept of “garbage in, garbage out”) that their understanding of data protection law is so flawed as to compromise the whole paper. They say, for instance

websites are prohibited from sharing user data with third parties, without the consent from each user

and

companies that target EU residents are required to encrypt and anonymise any personal data it [sic] stores

and (probably most bizarrely)

as users incur a cost when prompted to give consent to using their data, they might reduce online purchases, leading to lower sales

To be quite clear (as politicians are fond of saying): websites are not prohibited from sharing data without the consent from “users” (if they were, most ecommerce would grind to a halt, and the internet economy would collapse); companies subject to GDPR are not required to anonymise personal data they store (if they did, they would no longer be able to operate, leading to the collapse of the economy in general); and “users” do not have to consent to the use of their data, and I am still scratching my head at why even if they did they would incur a cost.

If the authors base their findings on the economic cost of GDPR on these bases, then there are some very big questions for them to answer from anyone reviewing their paper.

I may have the wrong paper: I actually really hope the government will back up its 8% figure with something more sensible.

But regardless of the economic thinking this paper, or underpinning the developments in the statutory regime, it is possible that all the developments cohere: that the Data Protection and Digital Information Bill, when it re-emerges, will have been amended so as to have the effect of removing references to “GDPR” or the “UK GDPR”, and that this will mean that, in substance, if not in name, the principles of the UK GDPR are assimilated into a new piece of domestic legislation.

But (given that the government’s focus is on it) business, just as nature, abhors a vacuum – many business owners (and indeed many data protection practitioners) must be hoping that there is a clear route forward so that the UK’s data protection regime can be considered, and applied, with at least a degree of certainty.

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.

Leave a comment

Filed under adequacy, consent, Data Protection, Data Protection Act 2018, Data Protection Bill, GDPR, parliament, UK GDPR

Data Protection reform Bill on ice

A piece by me on the Mishcon de Reya website on yesterday’s news that the Data Protection and Digital Information Bill has been paused

https://www.mishcon.com/news/data-protection-reform-progress-paused

Leave a comment

Filed under Data Protection, Data Protection Bill

ICO secures court-awarded compensation

ICO often say they can’t award compensation, but what they can do is – in criminal cases – make an application for the court to make an award (separate to any fines or costs). But as far as I know, until this case last week, they’d never done so:

https://www.mishcon.com/news/ico-recommends-compensation-awards-in-criminal-prosecution-case

Leave a comment

Filed under crime, damages, Data Protection, Data Protection Act 2018, Information Commissioner

High Court muddle over data protection regime

A relatively common error by those unaccustomed to the rather odd structure of the data protection statutory regime in the UK, is to look first to the Data Protection Act 2018 (“DPA”) for the applicable law, instead of the UK GDPR. This is despite the fact that the very first section of the DPA instructs us in how the regime works. Section 1(2) provides that “most processing of personal data is subject to the UK GDPR”, and then sections 1(4) and (5) explain that Parts 3 and 4 of the DPA deal with those parts of the regime (law enforcement processing and intelligence services processing) which are out of the scope of UK GDPR.

“Put me to one side” – says the DPA tactfully – “you should have picked up your copy of the UK GDPR first, and not me”.

Accordingly, the key provisions, and the basic principles, applying to most processing, are to be found in the UK GDPR.

The result of this relatively common error, is that people will sometimes cite, say, section 45 of the DPA in relation to a generic subject access request, when in fact, the applicable provision is Article 15 of the UK GDPR (section 45 applies to subject access requests to competent authorities for the purposes of law enforcement).

Occasionally, I have seen non-specialist lawyers make this mistake.

And now, I have seen a high court judge do the same. In a judicial review case in the High Court of Northern Ireland, challenging the accuracy of a child’s social care records, part of the claim (which was primarily an Article 8 human rights claim) was pleaded as also a breach of Article 5(1) and (6) of the “GDPR” (the correct pleading should have been, and maybe was, by reference to the UK GDPR) and Part 1 of the DPA. Article 5(1) of the UK GDPR contains the data protection principles.

The judge, however, stated that

It seems to the court that in fact the relevant part of the 2018 Act are sections 86 to 91 which set out the six data protection principles in relation to data processing.

This is simply wrong. Sections 86 to 91 of the DPA lay out the data protection principles only in relation to intelligence services processing (i.e. processing of personal data by the Security Service, the Secret Intelligence Service or by the Government Communications Headquarters).

It isn’t clear whether there was any discussion about this in the court (quite possibly not), but it appears not to have been picked up when the judgment was circulated in draft or published to the parties. As it is, it seems very likely that nothing turns on it. This is because the Part 4 DPA principles, like the Part 3 DPA principles, effectively mirror the principles in Article 5(1) UK GDPR, and so the analysis, for the purposes of the substantive matter, was sound.

So this was an error of form, more than substance.

However, there are some differences between the UK GDPR regime, the Part 3 DPA regime and the Part 4 DPA regime, and in different circumstances an error like this could result in an outcome which is wrong, and harmful.

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.

Leave a comment

Filed under accuracy, Data Protection, Data Protection Act 2018, GDPR, human rights, Ireland, judiciary, UK GDPR

Data Protection reform bill – all that? or not all that?

I’ve written an “initial thoughts” analysis on the Mishcon de Reya website of the some of the key provisions of the Data Protection and Digital Information Bill:

The Data Protection and Digital Information Bill – an (mishcon.com)

Leave a comment

Filed under adequacy, Data Protection, Data Protection Act 2018, Data Protection Bill, DPO, GDPR, Information Commissioner, PECR, UK GDPR

Data protection nonsense on gov.uk

It feels like a while since I randomly picked on some wild online disinformation about data protection, but when you get an itch, you gotta scratch, and this page of government guidance for businesses – “Get your business ready to employ staff: step by step” – specifically on “Personal data an employer can keep about an employee” certainly got me itching. It starts off sensibly enough by saying that

Employers must keep their employees’ personal data safe, secure and up to date.

This is true (Article 5(1)(f) and part of 5(1)(c) UK GDPR). And the page goes on to list some information can be “kept” (for which I charitably read “processed”) without employees’ permission, such as: name, address, date of birth, sex, education and qualifications, work experience, National Insurance number, tax code, emergency contact details, employment history with the organisation, employment terms and conditions, any accidents connected with work, any training taken, any disciplinary action. All pretty inoffensive, although I’m not sure what it’s trying to achieve. But then…oh my. Then, it says

Employers need their employees’ permission to keep certain types of ’sensitive’ data

We could stop there really, and snigger cruelly, Consent (aka “permission”) as a condition for processing personal data is complicated and quite frankly to be avoided if possible. It comes laden with quite strict requirements. The Information Commissioner puts it quite well

Consent is appropriate if you can offer people real choice and control over how you use their data, and want to build their trust and engagement. But if you cannot offer a genuine choice, consent is not appropriate. If you would still process the personal data without consent, asking for consent is misleading and inherently unfair…employers and other organisations in a position of power over individuals should avoid relying on consent unless they are confident they can demonstrate it is freely given

And let’s consider the categories of personal data the government page thinks employers should get “permission” to “keep”: race and ethnicity, religion, political membership or opinions, trade union membership, genetics [sic], biometrics, , health and medical conditions, sexual history or orientation.

But how quickly would an employer’s wheels grind to a halt if it couldn’t process personal data on an employee’s health “without her permission”? It would be unable to refer her to occupational health if she didn’t “permit” it. It would be unable to keep a record of her sickness absence if she withdrew her consent (consent should be as easy to withdraw as it is to give (see Article 7(3)). During the COVID pandemic, it would have been unable to keep a record of whether she had tested positive or not, if she said she didn’t want a record kept.

It’s nonsense, of course. There’s a whole range of gateways, plus a whole Schedule of the Data Protection Act 2018), which provide conditions for processing special categories of data without having to get someone’s consent. They include pressing social imperatives, like compliance with public health law, and promotion of equality of treatment and safeguarding of children or other vulnerable people. The conditions don’t apply across the board, but the point is that employees’ permission – their consent – is rarely, if ever, required when there is another compelling reason for processing their data.

I don’t really understand what need, what gap, the government page is trying to fill, but the guidance is pretty calamitous. And it is only likely to lead to confusion for business owners and employers, and runs the risk of pitting themselves against each other – with disputes arising – amidst the confusion.

BAH!

Now, that felt better. Like I say, sometimes it’s good to scratch that itch.

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.

Leave a comment

Filed under consent, Data Protection, Data Protection Act 2018, Let's Blame Data Protection, UK GDPR

Podcast on UK data protection reforms

My Mishcon de Reya colleague Adam Rose and I have recorded a short (25 minute) podcast on the government’s recent announcement of proposed data protection reforms.

UK Data Reform – what’s being proposed? (mishcon.com)

Leave a comment

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

Data reform – hot news or hot air?

I’ve written a piece for the Mishcon de Reya website on the some of the key proposals (for our client-base) in today’s data protection reform announcement.

Data protection law reform – major changes, but the (mishcon.com)

Leave a comment

Filed under adequacy, consent, cookies, Data Protection, Data Protection Act 2018, DPO, GDPR, Information Commissioner, international transfers, nuisance calls, PECR, UK GDPR