Tag Archives: DPA

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

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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

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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.

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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)

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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.

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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)

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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)

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

Start the DSAR countdown (but how?)

A while ago I wrote a piece on the Mishcon de Reya website pointing out that the Information Commissioner’s Office (ICO) had silently changed its guidance on how to calculate the “one month” timescale for responding to a subject access request under the General Data Protection Regulation (or “GDPR” – which is now domestic law in the form of the amended retained version of the GDPR, aka “UK GDPR”).

The nub of that piece was that the ICO (following the legal precedents) was now saying that “You should calculate the time limit from the day you receive the request“. Which was a change from the previous position that “You should calculate the time limit from the day after you receive the request “.

I have noticed, however, that, although the ICO website, in its UK GDPR guidance, maintains that the clock starts from the date of receipt, the guidance on “Law Enforcement Processing” (which relates to processing of personal data by competent authorities for law enforcement purposes under part 3 of the Data Protection Act 2018 (DPA), which implemented the Law Enforcement Directive) states that the time should be calculated

from the first day after the request was received

It’s not inconceivable (in fact I am given to understand it is relatively common) that a some controllers might receive a subject access request (or other data subject request) which must be dealt with under both the UK GDPR and the Law Enforcement Processing provisions (police forces are a good example of this). The ICO’s position means that the controller must calculate the response time as starting, on the one hand, on the date of receipt, and, on the other hand, on the day after the date of receipt.

And if all of this sounds a bit silly, and inconsequential, I would argue that it is certainly the former, but not necessarily the latter: failure to comply within a statutory timescale is a breach of a statutory duty, and therefore actionable, at least in principle. If the ICO really does believe that the timescale works differently under different legal schemes, then how, for instance can it properly determine (as it must, when required to) under Articles 57(1)(f) and 77(1) of the UK GDPR, or section 51(2) of the DPA, whether there has been a statutory infringement?

Statutory infringements are, after all, potentially actionable (in this instance either with regulatory action or private action by data subjects) – the ICO maintains a database of complaint cases and publishes some of this (albeit almost two years in arrears), and also uses (or may use) it to identify trends. If ICO finds that a controller has made a statutory infringement, that is a finding of potential significance: if that same finding is based on an unclear, and internally contradictory, interpretation of a key aspect of the law, then it is unlikely to be fair, and unlikely to be lawful.

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

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Filed under Data Protection, Data Protection Act 2018, GDPR, Information Commissioner, subject access, UK GDPR, Uncategorized

Tony Abbott hacking and data protection offences

The story about the hacking of Tony Abbott’s travel and other personal details, after he foolishly posted a picture of a flight boarding pass on social media, is both amusing and salutary (salutary for Abbott, and, I would suggest, Qantas and any other airline which prints boarding passes with similar details). What is also interesting to consider, is whether, if this hacking had occurred in the UK, it might have constituted an offence under data protection law.

Under section 170(1)(a) and 170(1)(c) of the Data Protection Act 2018 it is an offence for a person knowingly or recklessly…to obtain or disclose personal data without the consent of the controller, and also an offence for a person knowingly or recklessly…after obtaining personal data, to retain it without the consent of the person who was the controller in relation to the personal data when it was obtained.

There is at least an argument that this would have been a knowing obtaining of personal data without the consent of the controller (whether that controller was Qantas, or Abbott himself).

There are defences to both of these where the person can prove that the obtaining, disclosure, retaining etc. was in the particular circumstances, justified as being in the public interest.

Also, and this may be engaged here, it is a defence if the person acted for journalistic purposes, with a view to the publication by a person of any journalistic, academic, artistic or literary material, and in the reasonable belief that in the particular circumstances the obtaining, disclosing, retaining etc. was justified as being in the public interest. One does not have to be a paid journalist, or journalist by trade, to rely on this defence.

Prosecution in both cases may only be brought by the Information Commissioner, or with the consent of the Director of Public Prosecutions. The offences are triable either way, and punishable by an unlimited fine.

I write all this not to condemn the “hacker”, nor to condone Abbott. However, it is worth remembering that similar hacking, in the UK at least, is not without its risks.

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

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Filed under Data Protection, offences

An Uber-reaction in The Times

“Uber gives police private data on drivers and passengers” announces The Times(£) this morning.

In this post, much to my surprise (I have never taken an Uber, and don’t intend to – I don’t like their business model), I come to the defence of Uber.

A closer read of the Times piece reveals that what is being referred to, in documents filed with the High Court, in proceedings regarding TfL’s refusal to renew Uber’s licence, is requests to Uber from the police to disclose personal data for the purposes of the prevention and detection of crime or the apprehension or prosecution of offenders.

Such requests are commonly made to thousands of public authorities and private companies. They used to be known in data protection and police circles as “section 29 requests”, after the relevant section of the now-repealed Data Protection Act 1998. The term was a bit misleading: section 29, now replaced effectively by paragraph 2 of Schedule 2 to the Data Protection Act 2018, has the effect of disapplying the provisions of data protection law which would otherwise prevent the disclosure of personal data to the police (or others), and where not disclosing would be likely to prejudice the purposes of the prevention and detection of crime or the apprehension or prosecution of offenders. This is a necessary provision of data protection law, and provided that (as with all provisions) it is applied correctly and proportionately, it works very well: it gives controller the power to disclose personal data to the police where it is necessary for criminal justice.

If Uber are dealing with police requests appropriately, it is for the public good that personal data which assists the police to investigate drug transporting and human trafficking is made available to them.

In fact, I strongly suspect that The Times will receive such requests from the police. When the requests are related to the paper’s journalistic activities they are probably, and probably rightfully, refused, but they may well get requests in respect of their employees’ data, and I would be very surprised if they don’t sometimes – as a responsible company – comply with these.

Transport for London certainly receives such requests. Indeed, as a public authority, under its transparency measures, it has habitually made statistics on this public. The most recent publication I can find shows that 2012 to 2017 TfL received an average of approximately 10,000 requests each year.

Will The Times now report that TfL is handing over to the police thousands of pieces of intelligence on members of the public each year?

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Filed under Data Protection, Data Protection Act 2018, data sharing, police