Tag Archives: GDPR

COVID booster messages and the law

GET BOOSTED NOW Every adult needs a COVID-19 booster vaccine to protect against Omicron. Get your COVID-19 vaccine or booster. See NHS website for details

On Boxing Day, this wording appears to have been sent as an SMS in effect to every mobile telephone number in the UK. The relevant government web page explains that the message is part of the national “Get Boosted Now” campaign to protect against the Omicron variant of COVID-19. The web page also thanks the Mobile Network Operators for “their assistance in helping deliver the vitally important Get Boosted Now message”.

It is inevitable that questions may get raised raised about the legality of the SMSs under data protection law. What is important to note is that, although – to the extent that the sending involved the processing of personal data – the GDPR may apply (or, rather, the UK GDPR) the relevant law is actually the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”). Under the doctrine of lex specialis where two laws govern the same situation, the more specific rules will prevail over more general rules. Put another way, if the more specific PECR can justify the sending of the SMSs, then the sending will also be justified under the more general provisions of UK GDPR.

Regulation 16A of PECR (inserted by a 2015 amendment), provides that where a “relevant communications provider” (in this case a Mobile Network Operator) is notified by a government minister (or certain other persons, such as chief constables) that an “emergency” has occurred, is occurring or is about to occur, and that it is expedient to use an emergency alert service, then the usual restrictions on the processing of traffic and location data can be disregarded. In this instance, given the wording on the government website, one assumes that such a notification was indeed made by a government minister under regulation 16A. (These are different emergency alerts to those proposed to be able to be sent under the National Emergency Alert system from 2022 which will not directly involve the mobile network operators.)

“Emergency” is not defined in PECR, so presumably will take its definition here from section 1(1)(a) of the Civil Contingencies Act 2004 – “an event or situation which threatens serious damage to human welfare in a place in the United Kingdom”.

The effect of this is that, if the SMSs are legal under PECR, they will also be legal under Article 6(1)(c) and 6(1)(e) of the UK GDPR (on the grounds that processing is necessary for compliance with a legal obligation to which the controller is subject, and/or necessary for the performance of a task carried out in the public interest).

There is an interesting side note as to whether, even though the SMSs count as emergency alerts, they might also be seen as direct marketing messages under regulations 22 and 23 of PECR, thus requiring the content of the recipient before they could be sent. Under the current guidance from the Information Commissioner (ICO), one might argue that they would be. “Direct marketing” is defined in the Data Protection Act 2018 as “the communication (by whatever means) of advertising or marketing material which is directed to particular individuals” and the ICO defines it further by saying that this “covers any advertising or marketing material, not just commercial marketing. All promotional material falls within this definition, including material promoting the aims of not-for-profit organisations”. Following that line of thought, it is possible that the Omicron SMSs were both emergency alerts and direct marketing messages. This would be an odd state of affairs (and one doubts very much that a judge – or the ICO, if challenged on this – would actually agree with its own guidance and say that these SMSs were indeed direct marketing messages). The ICO is in the process of updating its direct marketing guidance, and might be well advised to consider the issue of emergency alerts (which aren’t covered in the current consultation document).

[Edited to add: I don’t think what I say above necessarily covers all the legal issues, and no doubt there are aspects of this that could have been done better, but I doubt very much there is any substantive legal challenge which can be made.]

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 communications data, consent, Data Protection, Data Protection Act 2018, GDPR, Information Commissioner, PECR, UK GDPR

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

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

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

GDPR’s scope – does it extend to China?

The answer to the question in the title is, of course, “yes”, if the processing in question is of personal data of data subjects in the EU, by a controller outside the EU, and related to the monitoring of data subjects’ behaviour as far as their behaviour takes place within the Union.

So, the activities of Zhenhua Data, in compiling its Overseas Key Individual Database, as described in The Mail, will be squarely within the scope of Article 3(2) of the General Data Protection Regulation (GDPR):

Boris Johnson and the Queen are among 40,000 Britons listed on a database compiled by a Chinese tech firm with reported links to Beijing’s military and intelligence networks, it can be disclosed.

Files on senior British politicians including the Prime Minister, members of the Royal Family, UK military officers and their families, and religious leaders are currently being stored by Zhenhua Data, a technology company based in Shenzhen, China as part of a ‘global mass surveillance system on an unprecedented scale’.

It seems difficult to imagine that the processing can possibly comply with GDPR. Where is the Article 14 notice? What is the Article 6 legal basis? Or the Article 9 exception to the general prohibition on processing special categories of data? Or the Article 30 record of processing activities? Or…or…or…?

But here’s the problem with any legislative attempt to extend the scope of laws beyond geographical and jurisdictional borders, to the activities of those who are not consulted, nor assigned rights, nor (in all likelihood) bothered: how does one enforce those laws? In 2018 (oh those heady early GDPR days!) the Information Commissioner’s Office (ICO) was reported to have told the Washington Post that its practice of only allowing those who paid for its premium subscription to refuse tracking cookies was unlawful. How many figs the WaPo gave is evidenced by a glance at its current subscription model:

(i.e. it appears to have changed nothing.)

Indeed, as the ICO said at the time

We hope that the Washington Post will heed our advice, but if they choose not to, there is nothing more we can do in relation to this matter

If there was nothing ICO could do against a newspaper outside the jurisdiction, consider how unrealistic is the idea that it might enforce against a Chinese company rumoured to work for the Chinese military, and which is said to view its mission as ‘using big data for the “great rejuvenation of the Chinese nation”‘.

The logical question, though, which arises is this – in the absence of an effective regulatory scheme to enforce them what exactly is the point of GDPR’s (or even more trenchantly, the UK GDPR’s) extra-territorial scope provisions?

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, enforcement, Europe, GDPR, Information Commissioner

If ICO won’t regulate the law, it must reboot itself

The exercise of the right of (subject) access under Article 15 of the General Data Protection Regulation (GDPR) is the exercise of a fundamental right to be aware of and verify the lawfulness of the processing of personal data about oneself.

That this is a fundamental right is emphasised by the range of enforcement powers available to the Information Commissioner’s Office (ICO), against those controllers who fail to comply with their obligations in response to an access request. These include the power to serve administrative fines to a maximum amount of €20m, but, more prosaically, the power to order the controller to comply with the data subject’s requests to exercise his or her rights. This, surely, is a basic function of the ICO – the sort of regulatory action which underlines its existence. This, much more than operating regulatory sandboxes, or publishing normative policy papers, is surely what the ICO is fundamentally there to do.

Yet read this, a letter shown to me recently which was sent by ICO to someone complaining about the handling of an access request:

 

Dear [data subject],

Further to my recent correspondence, I write regarding the way in which [a London Borough] (The Council) has handled your subject access request.

I have contacted the Council and from the evidence they have provided to me, as stated before, it appears that they have infringed your right to access under the GDPR by failing to comply with your SAR request. However, it does not appear as though they are willing to provide you with any further information and we have informed them of our dissatisfaction with this situation.

It is a requirement under the Data protection Act 2018 that we investigate cases to the ‘extent appropriate’ and after lengthy correspondence with the Council, it appears they are no longer willing co-operate with us to provide this information. Therefore, you may have better results if you seek independent legal advice regarding the matters raised in this particular case.

Here we have the ICO telling a data subject that it will not take action against a public authority data controller which has infringed her rights by failing to comply with an access request. Instead, the requester must seek her own legal advice (almost inevitably at her own significant cost).

Other controllers might look at this and wonder whether they should bother complying with the law, if no sanction arises for failing to do so. And other data subjects might look at it and wonder what is the point in exercising their rights, if the regulator will not enforce them.

This is the most stark single example in a collection of increasing evidence that the ICO is failing to perform its basic tasks of regulation and enforcement.

It is just one data subject, exercising her right. But it is a right which underpins data protection law: if you don’t know and can’t find out what information an organisation has about you, then your ability to exercise other rights is stopped short.

The ICO should reboot itself. It should, before and above all else, perform its first statutory duty – to monitor and enforce the application of the GDPR.

I don’t understand why it does not want to do so.

[P.S. I think the situation described here is different, although of the same species, to situations where ICO finds likely non-compliance but declines to take punitive action – such as a monetary penalty. Here, there is a simple corrective regulatory power available – an enforcement notice (essentially a “steps order”) under section 148 Data Protection Act 2018.]

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 access to information, Data Protection, GDPR, human rights, Information Commissioner

ICO – fines, what fines?

No surprise…but ICO has only issued four notices of intent to serve a fine since GDPR came into application (and one fine)

I made a quick Freedom of Information Act (FOIA) request a few weeks ago to the Information Commissioner’s Office (ICO), asking

since 25 May 2018
1) how many notices of intent have been given under paragraph 2(1) of schedule 16 to the Data Protection Act 2018?
2) How many notices of intent given under 1) have not resulted in a monetary penalty notice being given (after the period of 6 months specified in paragraph 2(2) of the same schedule to same Act)?

I have now received (4 September) received a response, which says that four notices of intent only have been issued in that time. Three of those are well known: one was in respect of Doorstep Dispensaree (who have since received an actual fine – the only one issued under GDPR – of £275,000); two are in respect of British Airways and of Marriott Inc., which have become long-running, uncompleted sagas; the identity of the recipient of the final one is not known at the time of writing.

The contrast with some other European data protection authorities is stark: in Spain, around 120 fines have been issued in the same time; in Italy, 26; in Germany (which has separate authorities for its individual regions), 26 also.

Once again, questions must be asked about whether the aim of the legislator, in passing GDPR, to homogenise data protection law across the EU, has been anywhere near achieved.

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, monetary penalty notice

One-stop shop starts to get interesting

The disagreement between the EU supervisory authorities over an Irish DPC draft decision could mark the start of a line of cases which the EDPB will need to resolve –  and maybe resolve to the consternation of the DPC, and Big Tech

As the UK hurtles backwards, blindfolded and with both arms tied behind its back, towards the precipice that is the end of the Brexit implementation period (31 December), and with no sign that the government is particularly pushing for an adequacy decision for the UK, it hardly seems worth it (the ICO is, for instance, already no longer a member) to analyse the implications of the news that the European Data Protection Board (EDPB) is being required to take its first binding decision pursuant to Article 65 of GDPR.

But I’m going to.

The Article 65 process has been triggered because an unspecified number of other supervisory authorities have raised objections (as they are entitled to) to the draft decision of the Irish Data Protection Commissioner (DPC) – the lead supervisory authority – in its investigation of of whether Twitter (more correctly “Twitter International Company”) complied with its personal data breach obligations under Article 33 of GDPR, in relation to a notification it made to the DPC in November 2018. In line with Articles 56 and 60, the DPC submitted its draft decision in May of this year. As this was a case involving cross-border processing, the DPC was required to cooperate with the other supervisory authorities concerned. One assumes, given the controller involved, that this meant the supervisory authorities of all member states. One also assumes that most complaints involving Big Tech (many of whom tend to base their European operations in Ireland, thus making the DPC the default lead supervisory authority) will similarly engage the supervisory authorities of all member states. The DPC already has many such complaint investigations, and, courtesy of civil society groups like “NOYB“, it is likely to continue to get many more.

Article 65 provides that where another supervisory authority “has raised a relevant and reasoned objection” to a draft decision of the lead supervisory authority, and the latter then doesn’t agree, then the EDPB must step in to consider the objection. The EDPB then has one month (two if the subject matter is complex) to reach a two-thirds majority decision, or, failing that, within a further two weeks, to reach a simple majority decision. The decision is binding on all the supervisory authorities.

And here’s where it gets interesting.

Because it must mean that, in circumstances where the EDPB agrees with an objection, then the lead supervisory authority will be bound to accept a decision it probably still does not agree with, and determine the substantive matter accordingly. In the context of the DPC, and its jurisdiction over the European processing of the world’s largest technology companies, this sounds like it might be a lot of fun. There are many supervisory authorities on the EDPB who take a substantially harder line than the DPC – if they end up being part of a simple majority which results in a “robust” binding decision, fur might well fly.

The controller being investigated appears to be able to challenge the EDPB’s decision by way of judicial review under Article 263 of the Treaty of the Functioning of the European Union. There is no direct route of appeal under the GDPR. But presumably an aggrieved controller may also potentially challenge the lead supervisory authority’s decision (which, remember, the latter might essentially disagree with) through the domestic courts, perhaps to the point where a referral to the CJEU could then also be made.

No doubt some of this may become clearer over the next few months. And, though it pains me to say it, and though it would be a development fraught with complexity and political shenanigans, maybe the UK will start to look like a more attractive place for Big Tech to base its European operations.

[This piece was updated on 24.08.20 to correct/clarify a point about the availability of judicial review of the EDPB].

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 Protection, EDPB, Europe, Ireland