Tag Archives: UK GDPR

March 24, 2023 · 7:37 am

SRA, data protection and the solicitors roll

In August 2022 the Solicitors Regulation Authority (SRA) announced plans to change its rules and reinstate the annual “keeping of the roll” exercise. Until 2014, all solicitors without practising certificates were required to complete an application each year and pay an administration fee if they wished to remain on the roll. This requirement was dispensed with in 2014 in part because the annual process was seen as burdensome for solicitors.

One of the justifications now for reintroducing the keeping of the roll is given by the SRA as

There are also requirements under the General Data Protection Regulation (GDPR) 2016 [sic] and the seven principles that govern the holding and retention of data. Under GDPR we have responsibility as a data controller to ensure we maintain accurate data relating to individuals and we are processing it fairly and lawfully.

What is slightly odd is that when, in 2014, the SRA proposed to scrap the keeping of the roll, it was not troubled by the observations of the then Information Commissioner about the importance of accuracy and privacy of information. In its reply to the then Commissioner’s consultation response it said that it had “fully considered the issues” and

We consider that the availability of the SRA’s online system, mySRA, to non- practising solicitors as a means of keeping their details up to date, serves to mitigate the possibility of data become inaccurate…To further mitigate the risk of deterioration of the information held on the roll, the SRA can include reminders to keep contact details up to date in standard communications sent to solicitors.

If that was the position in 2014, it is difficult to understand why it is any different today. The data protection principles – including the “accuracy principle” – in the UK GDPR (not in fact the “GDPR 2016” that the SRA refers to) are effectively identical to those in the prior Data Protection Act 1998.

If the SRA was not concerned by data protection considerations in 2014 but is so now, one might argue that it should explain why. The Information Commissioner does not appear to have responded to the consultation this time around, so there is no indication that his views swayed the SRA.

If the SRA was concerned about the risk of administrative fines (potentially larger under the UK GDPR than under the Data Protection Act 1998) it should have reassured itself that any such fines must be proportionate (Article 83(1) UK GDPR) and by the fact that the Commissioner has repeatedly stressed that he is not in the business of handing out fines for minor infringements to otherwise responsible data controllers.

I should emphasise that data protection considerations were not the only ones taken into account by the SRA, and I don’t wish to discuss whether, in the round, the decision to reintroduce the keeping of the roll was correct or not (Joshua Rozenberg has written on this, and the effect on him). But I do feel that the arguments around data protection show a confused approach to that particular issue.

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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March 12, 2023 · 12:49 pm

Where’s the Tories’ privacy notice? (just don’t mention the footballer)

The Conservative Party, no doubt scrabbling to gather perceived support for its contentious immigration policies and measures is running a web and social media campaign. The web page encourages those visiting it to “back our plan and send a message” to other parties:

Further down the page visitors are invited to “send Labour a message”

Clicking on either of the red buttons in those screenshots results in a pop-up form, on which one can say whether or not one supports the Tory plans (in the screenshot below, I’ve selected “no”)

One is then required to give one’s name, email address and postcode, and there is a tick box against text saying “I agree to the Conservative Party, and the wider Conservative Party, using the information I provide to keep me updated via email about the Party’s campaigns and opportunities to get involved”

There are two things to note.

First, the form appears to submit whether one ticks the “I agree” box or not.

Second, and in any case, none of the links to “how we use your data”, or the “privacy policy”, or the “terms and conditions” works.

So anyone submitting their special category data (information about one’s views on a political party’s policies on immigration is personal data revealing political opinions, and so Article 9 UK GDPR applies) has no idea whatsoever how it will subsequently be processed by the Tories.

I suppose there is an argument that anyone who happens upon this page, and chooses to submit the form, has a good idea what is going on (although that is by no means certain, and people could quite plausibly think that it provides an opportunity to provide views contrary to the Tories’). In any event, it would seem potentially to meet to definition of “plugging” (political lobbying under the guide of research) which ICO deals with in its direct marketing guidance.

Also in any event, the absence of any workable links to privacy notice information means, unavoidably, that the lawfulness of any subsequent processing is vitiated.

It’s the sort of thing I would hope the ICO is alive to (I’ve seen people on social media saying they have complained to ICO). But I won’t hold my breath on that – many years ago I wrote about how such data abuse was rife across the political spectrum – but little if anything has changed.

And finally, the most remarkable thing of all is that I’ve written a whole post on what is a pressing and high-profile issue without once mentioning Gary Lineker.

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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December 18, 2022 · 8:58 am

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.

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November 26, 2022 · 10:59 am

Does DHSC have a compliant ROPA?

Article 30(4) of the UK GDPR requires a controller to make its records of processing activities (ROPA) available to the Information Commissioner (ICO) upon request.

ROPAs are required for most large controllers, and should include at least

  • The name and contact details of the organisation (and where applicable the data protection officer).
  • The purposes of processing.
  • A description of the categories of individuals and categories of personal data.
  • The categories of recipients of personal data.
  • Details of transfers to third countries including documenting the transfer mechanism safeguards in place.
  • Retention schedules.
  • A description of the controller’s technical and organisational security measures.

Ordinarily, in my experience, controllers will maintain a ROPA in one document, or one set of linked documents. This not only enables a controller to comply with Article 30(4), but reflects the fact that a ROPA is not just a compliance obligation, but contributes to and assists the controller in its information governance functions.

This all makes the position of the Department of Health and Social Care (DHSC) rather odd. Because, in response to a Freedom of Information Act (FOIA) request for disclosure of its ROPA, it stated that the request was “vexatious” on the grounds of the time and costs it would have to incur to respond. This was because, as the DHSC subsequently told the ICO when the latter was asked to issue a FOIA decision notice

We hold a collection of documentation across different formats which, when put together, fulfils our obligation under Article 30 of the GDPR to record and document all of our personal data processing activities…[and]…to locate, retrieve and extract all of this documentation would involve a manual trawl of the whole organisation and each document would then need to be reviewed to check for content such as personal data, commercially sensitive data and any other information that would otherwise not be appropriate to place into the public domain

For this reason, the ICO accepted that compliance with the request would be “grossly oppressive” and this, taken with other factors, meant that the FOIA request was indeed vexatious.

The ICO is tasked with regulating both FOIA and data protection law. The decision notice here notes this, and says

the Commissioner feels duty bound to note that, if the DHSC cannot comply with the request because it would impose a grossly oppressive burden to do so, it is unlikely that the DHSC would be able to provide its ROPA to the Commissioner, which is a requirement under Article 30 of the UK GDPR, without that same burden

There’s a big hint here to DHSC that it should adopt a different approach to its ROPA for the future.

But the decision notice does contain some rather strange wording. In the context of the words quoted just above, the ICO says

This decision notice looks at the DHSC’s compliance with FOIA only and the Commissioner cannot order the DHSC to take any action under any other legislation.

It is true that, under his FOIA powers, the ICO cannot order the DHSC to comply with the UK GDPR, but, quite evidently, under his UK GDPR powers, he certainly can: Article 58(2)(d) specifically empowers him to

order the controller…to bring processing operations into compliance with the provisions of this Regulation, where appropriate, in a specified manner and within a specified period

I am not aware of anything in FOIA, or data protection law (or wider regulatory and public law) that prevents the ICO from taking enforcement action under UK GDPR as a result of findings he has made under FOIA. Indeed, it would be rather strange if anything did prevent him from doing so.

So it does seem that the ICO could order DHSC to get its ROPA in order. Maybe the big hint in the FOIA decision notice will have the desired effect. But regulation by means of big hints is perhaps not entirely in compliance with the requirement on the ICO, deriving from the Regulators’ Code, to ensure that its approach to its regulatory activities is transparent.

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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October 7, 2022 · 7:42 am

GDPR is rubbish

I was challenged recently along the lines that “you don’t like change – you think that GDPR is great and any amendments are negative”.

After I’d spluttered in rage that this wasn’t true, I checked my thoughts. I don’t think the challenge was fair – I don’t mind the idea of repeal or reform of the UK GDPR model – but I do still think that any change needs to be planned and drafted very carefully, so as not to interfere with the core data protection concepts, and checks and balances, that have – broadly – carried through and developed over a series of legal instruments, starting with the Council of Europe Convention 108 of 1981 and the OECD Guidelines of 1980.

But, also, I’m happy to point out that, at times, GDPR is simply rubbish. And I don’t mean in broad legal terms – see for instance David Erdos’s interesting criticisms – I mean that it sometimes doesn’t make sense.

There’s an example in recital 63

A data subject should have the right of access to personal data…in order to be aware of, and verify, the lawfulness of the processing.

I think this is meant to mean “a data subject should have the right of access in order to be aware of the processing and verify its lawfulness”. But, as drafted, it suggests the data subject should be able to be aware of the lawfulness of the processing, and verify that lawfulness, which lacks logic.

But that’s in the recitals, and no one reads the recitals do they?

But consider one of the substantive provisions. Article 5(2), which describes the “accountability principle” says

The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).

Think about what that says: “the controller shall be responsible for…paragraph 1” (paragraph 1 containing the core data protection principles). What it is surely intended to mean is “the controller shall be responsible for compliance with paragraph 1”, but it doesn’t say that. In literal terms it says that the controller has responsibility for the legislative words.

And it’s worth noting that in the French text (French being the only other language this lumbering English person has really even vague familiarity with), the wording does say that: “…est responsable du respect du paragraphe 1…”.

I’m not suggesting this is a big problem: a regulator and a court would almost certainly read the wording so as to give effect to the legislator’s intention.

It just irritates me.

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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September 1, 2022 · 7:12 pm

ICO investigates collection of barristers’ names

News from the Mishcon de Reya website on data protection concerns arising from criminal barristers’ dispute with the MoJ

https://www.mishcon.com/news/information-commissioner-investigates-collection-of-criminal-barristers-names

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August 10, 2022 · 8:11 am

No, 43% of retail businesses have NOT been fined for CCTV breaches

A bizarre news story is doing the rounds, although it hasn’t, as far as I can see, hit anything other than specialist media. An example is here, but all the stories contain similar wording, strongly suggesting that they have picked up on and reported on a press release from the company (“Secure Redact”) that undertook the research behind the story.

We are told that

research reveals that 43% of UK retailers reported that they had been fined for a violation of video surveillance GDPR legislation…Of these retailers, 37% reported paying an equivalent of 2% of their annual turnover, 30% said the fine amounted to 3% of annual turnover, and 15% said the fine was 45% [sic] of annual turnover…A staggering 33% of those fined also had to close stores as a result of enforcement action

The research was apparently based on a survey of 500 respondents in retail businesses (50% in businesses with less than 250 employees, 50% in businesses with more than 250).

What is distinctly odd about this is that since GDPR has been in force in the UK, including since it has become – post-Brexit – UK GDPR, there has been a sum total of zero fines imposed by the Information Commissioner in respect of CCTV. 43% of retail businesses have not been fined for CCTV infringements – 0% have.

You can check here (direct link to .csv file) if you doubt me.

It’s difficult to understand what has gone wrong here: maybe the survey questions weren’t clear enough for the respondents or maybe the researchers misinterpreted the data.

Whatever the reasons behind the stories, those in the retail sector – whilst they should certainly ensure they install and operate CCTV in compliance with GDPR/UK GDPR – should not be alarmed that there is a massive wave of enforcement action on the subject which threatens to put some of them out of business.

Because there isn’t.

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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