Tag Archives: ICO

Yet more delays to proposed ICO BA and Marriott fines

I have this piece on the Mishcon de Reya website. More than a year since they were first proposed, ICO has still not converted its notices of intent into actual fines. Will it ever?

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COVID-19 and ICO’s proposed fines for BA and Marriott

I have a piece on the Mishcon de Reya website, questioning whether the Coronavirus might fundamentally affect the likelihood of BA and Marriott receiving huge GDPR fines.

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DSARs – the clock doesn’t stop for clarification of a request

A thread on Twitter by solicitor Martin Sloan has drawn attention to a change to official guidance on the question of when a subject access request (pursuant to Article 15 of the General Data Protection Regulation (GDPR)) “starts”, in circumstances where a controller processes large amounts of data and asks the data subject to specify what information is sought.

Recital 63 of GDPR says that where a controller processes “a large quantity of information concerning the data subject [it] should be able to request that, before the information is delivered, the data subject specify the information or the processing activities to which the request relates”. This certainly seems to suggest that it is only when the controller is ready to “deliver” the information (i.e. when it has already searched for and retrieved it) that it can ask for the request to be, in effect, narrowed down.

However, guidance from the Information Commissioner’s Office (ICO) used to say* “If you process a large amount of information about an individual you can ask them for more information to clarify their request. You should only ask for information that you reasonably need to find the personal data covered by the request. You need to let the individual know as soon as possible that you need more information from them before responding to their request. The period for responding to the request begins when you receive the additional information” (emphasis added). This was similar to the position which obtained under the prior Data Protection Act 1998, which provided that a controller was not obliged to comply with a request unless it was supplied with such information as was reasonably required to locate the information which the data subject sought.

But the ICO now says: “If you process a large amount of information about an individual, you may ask them to specify the information or processing activities their request relates to before responding to the request. However, this does not affect the timescale for responding – you must still respond to their request within one month” (emphasis also added).

The change appears to be correct as a matter of law (by reference to recital 63), but it is possible that it may lead to an increase in reliance by controllers on Article 12(3), which potentially allows an extension to the one month period for compliance if a request is complex.

The new wording is contained in the ICO’s draft detailed guidance on subject access requests, which is currently out for consultation. One presumes the ICO thought this particular change was sufficiently important to introduce it in advance, but it is rather surprising that no announcement was made.

[UPDATE: Martin has now got a piece on Brodies’ own website about this].

[*the link here is to an archived page].

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Why the big pause? ICO delay agreed re GDPR fines

On the Mishcon website: ICO agrees delay over GDPR fines with both BA and Marriott

 

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The Cost of Enforcement

I wrote recently, on the Mishcon de Reya Data Matters blog, about whether BA and Marriott might actually avoid the fines the Information Commissioner’s Office (ICO) intends to serve on them. In that piece, I said

one has no doubt whatsoever that BA and Marriott will have had lawyers working extensively and aggressively on challenging the notices of intent.

With that in mind, it is interesting to note that, in commentary on recent management accounts, the ICO warns that

Legal expenses…are tracking at much higher levels than budgeted and are expected to be adverse to budget for the full financial year

Indeed, the ICO’s legal spend for this year is forecast to be £2.65m, against a budget of £1.98m. These sound like large sums (and of course they are), but, compared with the likely legal budgets of BA, or Marriott, or indeed, many other of the huge companies whose processing is potentially subject to enforcement action by ICO, they are tiny. Any large controller faced with a huge fine will almost inevitably spend large sums in challenging the action.

Query whether ICO can, realistically, actually afford to levy fines at the level GDPR envisages?

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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Whither the ICO fines for BA and Marriott?

I have a new post on the Mishcon de Reya website, asking what is happening regarding the notices of intent served some months ago on BA and Marriott Inc.

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The most boring blogpost on this blog?

Although GDPR, and the Data Protection Act 2018 (DPA18), took effect from 25 May 2018, it has been notable that the Information Commissioner’s Office (ICO) has continued to exercise its enforcement powers under the prior law. There is no problem with this, and it is only to be expected, given that regulatory investigations can take some time. The DPA18 contains transitional provisions which mean that certain sections of the Data Protection Act 1998 continue to have effect, despite its general repeal. This is the reason, for instance, why the ICO could serve its recent enforcement notice on Hudson Bay Finance Ltd using the powers in section 40 of the 1998 – paragraph 33 of Schedule 20 to the DPA18 provides that section 40 of the 1998 Act continues to apply if the ICO is satisfied that the controller contravened the old data protection principles before the rest of the 1998 Act was repealed.

However, what is noticeable in the Hudson Bay Finance Ltd enforcement notice is that it says that it was prompted by a request for assessment by the complainant, apparently made on 21 September 2018, purportedly made under section 42 of the 1998 Act. I say “purportedly” because the transitional provisions in Schedule 20 of DPA18 require the ICO to consider a request for assessment made before 25 May 2018, but in all other respects, section 42 is repealed. Accordingly, as a matter of law, a data subject can (after 25 May 2018) no longer exercise their right to request an assessment under section 42 of the 1998 Act.

This is all rather academic, because it appears to me that the ICO has discretion – even if it does not have an obligation – to consider a complaint by a data subject relating to compliance with the 1998 Act. And ICO clearly (as described above) has the power still to take enforcement action for contraventions of the 1998 Act. But no one ever told me I can’t use my blog to make arid academic points.

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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Blagging as academic research

A white paper on GDPR subject access rights, presented at the Blackhat USA 2019 conference, got a lot of UK media coverage recently. Less discussion was had, however, about whether the research raised questions about the ethics and legality of “blagging”.

The paper, by Oxford University DPhil researcher James Pavur and Casey Knerr, talked of “Using Privacy Laws to Steal Identities” and describes Pavur’s attempts to acquire another person’s (Knerr’s) data, by purporting to be that person and pretending to exercise their access rights under Article 15 of the General Data Protection Regulation (GDPR). It should be emphasised that Knerr was fully acquiescent in the exercise.

Pavur and Knerr’s paper has a section entitled “Ethical and legal concerns” but what it notably fails to address is the fact that deliberately obtaining personal data without the consent of the controller is potentially a criminal offence under UK law.

Since 1998 it has been an offence to deliberately obtain personal data by deception, with defences available where the obtaining was, for instance, justified as being in the public interest. The Data Protection Act 2018 introduces, at section 170, a new defence where the obtaining is for academic purposes, with a view to publication and where the person doing the obtaining reasonably believes that it was justified in the public interest. Previously, this defence was only available where the obtaining was for the “special purposes” of journalism, literature or art.

It would certainly appear that Pavur obtained some of the data without the consent of the controller (the controller cannot properly be said to have consented to its disclosure if it was effected by deception – indeed, such is the very nature of “blagging”), but it also appears that the obtaining was done for academic purposes and with a view to publication and (it is likely) in the reasonable belief that the obtaining was justified in the public interest.

However, one would expect that prior to conducting the research, some analysis of the legal framework would have revealed the risk of an offence being committed, and that, if this analysis had been undertaken, it would have made its way into the paper. Its absence makes the publicity given to the paper by Simon McDougall, of the Information Commissioner’s Office (ICO), rather surprising (McDougall initially mistakenly thought the paper was by the BBC’s Leo Kelion). Because although Pavur (and Knell) could almost certainly fall back on the “academic purposes” defence to the section 170 offence, a fear I have is that others might follow their example, and not have the same defence. Another fear is that an exercise like this (which highlights risks and issues with which controllers have wrestled for years, as Tim Turner points out in his excellent blogpost on the subject) might have the effect of controllers becoming even more keen to demand excessive identification credentials for requesters, without considering – as they must – the proportionality of doing so.

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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ICO change to guidance on Subject Access Request time limits

I have a post on the Mishcon de Reya website, on an odd, but potentially very significant, change of position by the Information Commissioner’s Office, when it comes to calculating GDPR time limits for data subject requests.

ICO change to guidance on Subject Access Request time limits

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Open by Design, Closed by Default?

The Information Commissioner’s Office (ICO) have published their new access to information strategy. Something strikes me about their “Goal #2”:

Goal #2: Providing excellent customer service to individuals making requests to us and lead by example in fulfilling our own statutory functions

The thing strikes me is that, bizarrely, they seem to have misunderstood the goal they’ve set themselves (I nearly referred to it as their “own goal”, which has a bit of a ring about it). They say

We have a varied range of individuals who request an independent review from us and a diverse range of public authorities within our jurisdiction from large central government departments to very small parish councils.

What they don’t say is “we are a public authority, subject to the Freedom of Information Act, and have to comply with its timescales, and promote observance of it by example”.

And, unfortunately, there is much evidence recently of a failure to do this.

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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