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Analysis and Commentary about Global Data Protection Laws, Including GDPR, FOI, Cyber Security and Surveillance
Act Now Training would like to wish everyone all of the seasons greetings and we wish you a happy and healthy 2021.
The office will be closed for the holiday season from Thursday the 24th December. We will be back in the office from the 4th January 2021.
Stay safe and stay well.
Act Now is pleased to announce its support for Woodgate Community Food which is a food bank for residents of the Fosse Ward in Leicester. It recently won the Leicestershire Community Champions Award (Community Organisation category).
According to a report in the Guardian recently, food aid charities have identified the emergence of the UK’s “newly hungry”, a growing cohort of people previously in good jobs and enjoying comfortable incomes who have been forced to use food banks and claim welfare benefits for the first time during the pandemic.
The Feeding Britain network and Independent Food Aid network (IFAN) said their members were providing food support to a new influx of middle-income families.
Typically with families, cars and often self-employed or business owners, they had been plunged into crisis by Covid-related job losses and gaps in the social security system.
For the next four months, for each copy of our GDPR Handbook and GDPR Keeling Schedule we sell, we will donate £1 to Woodgate Community Food Bank. One of the founders and committee members is our senior Associate, Lynn Wyeth who said,
“We are so grateful to Act Now for choosing our foodbank. Increasing poverty and Covid19 has had devastating effects on our communities with many turning to foodbanks to help them get by. Numbers have increased dramatically during the continued Leicester lockdown. We all want to see a society where food banks are not needed but until then our amazing community volunteers will support the most vulnerable in our neighbourhoods with food, toiletries and advice on where to get more help.”
Act Now is pleased to be playing a small part in tackling the effects of the Covid pandemic. A similar initiative recently saw a substantial donation being made to Refuge to help in their efforts to tackle the increase in domestic violence during the pandemic.
We can all play a part in alleviating suffering during this crisis. Get involved in a cause and spread the love. Support your local food bank and/or donate to Woodgate Food Bank here. You can also follow them on Facebook and Twitter.
Ibrahim Hasan writes…
Data Protection law is about protecting peoples’ human rights. When organisations fail to comply, it can have a big impact on peoples’ lives. I was proud to work with the BBC on a recent story which highlights the importance of protecting the personal data of some of the most vulnerable in society.
Thanks to tenacious journalism by Ben Moore and Tobey Wadey, piles of patient data which were left unsecured in an abandoned care home, more than four years after it was shut down, were finally removed. It included care plans, bank details and photos of injuries we well as information about relatives. The Information Commissioner is now on the case.
You can watch the BBC report, which includes an interview with me here.
The BBC website feature can be read here.
Act Now is pleased to announce the launch of its course programme for the first quarter of 2021. For the moment, until we return to “normality”, all our courses will be delivered in an online learning environment (using Microsoft Teams) and have been redesigned to ensure that they are interactive, engaging and fun.
Along with favourites such as GDPR and FOI AZ, we have added some new courses to help Data Protection Officers develop their skills and knowledge. The first of these is ran in November (“How to be a Data Protection Officer” with Kirsty Squires), and was fully booked. Delegates commentated on how much they valued learning from a practicing Data Protection Officer:
“This was exactly the learning that I’ve been looking for pretty much since doing the Practitioner course a 3 years ago. You’ve given me a lot of food for thought about how Sureserve Group handles its DPA obligations and, while these might not necessarily lie with me (or at least solely with me) in the future, you’ve helped me create a more structured idea of how we might do things ‘properly’ and also how to put as much ‘right’ as I can at the moment.”
More dates for this course have added in 2021.
For those wishing to keep up to date with GDPR developments our online GDPR update workshop is a must. Our most popular certificate course, the GDPR Practitioner Certificate, is going from strength to strength. The last ten of these courses have been fully booked and delegates have given us excellent feedback:
“A highly informative and interactive course which helped to join the dots together and add layers to my understanding of a complex area. I had some reservations as to how it would be possible to achieve an effective course remotely and would it be as engaging as a classroom based alternative. Frank managed all this and more, he was approachable, highly knowledgeable and made sure the participants were understanding the content.
I would not hesitate to recommend to colleagues.” SW, Harrogate Borough Council
“Really enjoyed the online course and felt that I received the same knowledge without the need to leave my house!” GB, NHS Ayrshire & Arran
“Excellent course, very informative and well organised, with useful practical exercises that complimented the presentations and helped to cement the learning.” JB, Cambridgeshire County Council
New Advanced Certificate in GDPR Practice
For those who have completed the GDPR certificate, our Advanced Certificate in GDPR Practice has just been launched. This new course consists of a series of challenging masterclasses in which delegates will analyse and evaluate thought-provoking case studies designed to help them deconstruct and interpret complex GDPR issues. This will help them gain a deeper understanding of the GDPR and further their ability to navigate the legislation and its application.
The course is set over three days; approximately one masterclass per month and will take a total of 12 weeks to complete. A practical project is required to be submitted at the end of the course. There are only two places left on the first course so please apply early. Click here for more information.
Cyber Security
In the space of a month the Information Commissioner’s Office (ICO) has issued three Monetary Penalty Notices (aka fines). All related to breaches of GDPR’s security requirements as set out in Article 5 and 32. The latest requires Ticketmaster to pay £1.25m following a cyber-attack on its website which compromised millions of customers’ personal information. The ICO has also fined Marriott International Inc for a cyber security breach which saw the personal details of millions of hotel guests being accessed by hackers. This followed a fine for British Airways also for a cyber breach.
You can read more about the causes of such breaches in our recent blog post.
Our new Introduction to Cyber Security Management will introduce you to the main concepts of cyber security, the benefits of good cyber security management and how risk management is used as a means of determining priorities for action.
Surveillance
The Coronavirus pandemic has seen an increased focus on surveillance especially by public authorities. Whether you are worried about employee surveillance or the use of drones we have a course for you. Alongside our regular RIPA workshop we have added a course on Surveillance Cameras, Drones and the Law. Look out for the launch of RIPA Essentials, our new e learning course.
FOI Certificate
In July we launched our online FOI Practitioner Certificate. This new course has been designed to mirror our classroom based course that was running successfully throughout the country before the lockdown. It has been really well received with most courses being fully booked.
“Very useful course – really enjoyed it and didn’t find the online format any barrier at all to learning. The technology enables us to interact with the speaker and other delegates as if we were all meeting in person, and I found having 2 days a week for a fortnight (rather than 1 day a week over a month) helped keep the momentum of the course going and consolidated my learning.” AH, Invicta Law
In 2021 we will be delivering an improved version of the FOI certificate with even more case studies and exercises.
In House Training
Finally don’t forget that all our courses can be delivered on an In-house basis and customised to meet the training needs of your staff. We have delivered such training to a number of councils, NHS Trusts, a regulator and even a foreign government. Feel free to get in touch to discuss your in house training needs.
The Investigatory Powers Commissioner’s Office (IPCO), like its predecessor the Office of the Surveillance Commissioner(OSC), undertakes inspections of public authorities to ensure their compliance with Part 2 of the Regulation of Investigatory Act 2000 (RIPA).
A common feature of an IPCO report into a council is the highlighting of the lack of regular refresher training for those who undertake covert surveillance, including when using social media.
The coronavirus pandemic as well as decreasing council budgets means that training staff is difficult to say the least. Social distancing and home working make face to face training impossible and live online training may not always be cost effective for those who need a quick refresher.
Act Now Training is pleased to announce the launch of RIPA Essentials. This is a new e learning course, consisting of an animated video followed by an online quiz, designed to update local authority employees’ knowledge of Part 2 of RIPA which covers Directed Surveillance, Intrusive Surveillance and CHIS. Designed by our RIPA experts, Ibrahim Hasan and Steve Morris, it uses simple clear language and animation to make the complex simple.
In just 30 minutes your employees can learn about the main provisions of Part 2 of RIPA including the different types of covert surveillance, the serious crime test and the authorisation process. It also covers how RIPA applies to social media monitoring and how to handle the product of surveillance having regard to data protection. All this at a time and in a place of your employees’ choosing. (See the full contents here.)
Steve Morris said:
“Ibrahim and I have over 40 years of experience in training and advising local authorities on covert surveillance and RIPA. We have used this experience, as well as the latest guidance from the Home Office and IPCO, to produce an online training course which is engaging, interactive and fun.”
With full admin controls, RIPA Essentials will help you to build a RIPA compliance culture in your organisation and develop a workforce that is able to identify and address privacy risks when conducting surveillance. The course is specifically designed for local authority investigators including trading standards officers, environmental health officers, licensing officers, auditors and legal advisers.
You can watch a demo of RIPA Essentials here. Prices start from as little as £69 plus vat per user. For a bespoke quote please get in touch.
RIPA Essentials follows the successful launch of GDPR Essentials which has been used by our clients to train thousands of staff in the public and private sector.
Act Now Training is pleased to announce the launch of the Advanced Certificate in GDPR Practice. It comes following 12 months of development and as a result of the success of our GDPR Practitioner Certificate which, over the last few years, has cemented its position as the gold standard for data protection qualifications.
Our courses are practical and jargon free. We focus on teaching the skills and knowledge to help delegates do their job every day. Our aim is to help delegates become the most complete DPO for the ever-changing privacy landscape.
“The training provided practical guidance with useful examples to help inform my application of GDPR in the workplace. The focus was on how to use it rather than learning all the legal minutiae, and from the first session I was able to go away and use what I’d learnt in my Information Governance role.” EG, Hampshire CC
“A highly informative and interactive course which helped to join the dots together and add layers to my understanding of a complex area. I had some reservations as to how it would be possible to achieve an effective course remotely and would it be as engaging as a classroom-based alternative. Frank managed all this and more, he was approachable, highly knowledgeable and made sure the participants were understanding the content.
I would not hesitate to recommend to colleagues.” SW, Harrogate BC
Having trained over 1500 data protection professionals on our GDPR Practitioner Certificate, we have now answered their call for a more advanced GDPR qualification to help them enhance their skills and knowledge.
The new Advanced Certificate in GDPR Practice consists of a series of challenging masterclasses in which delegates will analyse and evaluate thought-provoking case studies designed to help them deconstruct and interpret complex GDPR issues. This will help them gain a deeper understanding of the GDPR and further their ability to navigate the legislation and its application.
The course is set over three days; approximately one masterclass per month and will take a total of 12 weeks to complete. Delegates should expect to do at least five hours of self-study prior to each masterclass. A practical project will be required to be submitted at the end of the course.
This course has been designed and will be delivered by our senior associate, Susan Wolf, and our director, Ibrahim Hasan. Susan has over ten years’ experience teaching practitioners on the LLM Information Rights Law at Practice at Northumbria University. She has also designed our very popular FOI Practitioner Certificate course. Ibrahim has been designing and delivering practical data protection courses for over 20 years.
Ibrahim said:
“I am really looking forward to teaching this course. I hope to challenge, inspire and provoke delegates into thinking about advanced GDPR concepts and their application.
It will be hard work for the delegates (and the tutor) but worth it!
These together with a series of practical tasks is sure to enthuse and excite delegates on their way to advancing their skills.”
This advanced course is exclusively available to those who have completed the Act Now GDPR Practitioner Certificate as it builds on the knowledge and skills developed in that course. There is an application process for places which are limited to 8 per course.
The course has a special introductory price of £2,150 plus vat, which is £500 off the RRP. Application forms are available on our website. If you wish to discuss your suitability for this course before applying, please get in touch and we will be happy to help.
GDPR fines are like a number 65 bus. You wait for a long time and then three arrive at once. In the space of a month the Information Commissioner’s Office (ICO) has issued three Monetary Penalty Notices. The latest requires Ticketmaster to pay £1.25m following a cyber-attack on its website which compromised millions of customers’ personal information.
The ICO investigation into this breach found a vulnerability in a third-party chatbot built by Inbenta Technologies, which Ticketmaster had installed on its online payments page. A cyber-attacker was able to use the chatbot to access customer payment details which included names, payment card numbers, expiry dates and CVV numbers. This had the potential to affect 9.4million Ticketmaster customers across Europe including 1.5 million in the UK.
As a result of the breach, according to the ICO, 60,000 payment cards belonging to Barclays Bank customers had been subjected to known fraud. Another 6000 cards were replaced by Monzo Bank after it suspected fraudulent use. The ICO said these bank and others had warned Ticketmaster of suspected fraud. Despite these warnings it took nine weeks to start monitoring activity on its payments page.
The ICO found that Ticketmaster failed to:
James Dipple-Johnstone, Deputy Information Commissioner, said:
“When customers handed over their personal details, they expected Ticketmaster to look after them. But they did not.
Ticketmaster should have done more to reduce the risk of a cyber-attack. Its failure to do so meant that millions of people in the UK and Europe were exposed to potential fraud.
The £1.25milllion fine we’ve issued today will send a message to other organisations that looking after their customers’ personal details safely should be at the top of their agenda.”
In a statement, Ticketmaster said:
“Ticketmaster takes fans’ data privacy and trust very seriously. Since Inbenta Technologies was breached in 2018, we have offered our full cooperation to the ICO.
We plan to appeal [against] today’s announcement.”
Ticketmaster’s appeal will put the ICO’s reasoning and actions, when issuing fines, under judicial scrutiny. This will help GDPR practitioners faced with similar ICO investigations.
Ticketmaster is also facing civil legal action by thousands of fraud victims. Law firm Keller Lenkner, which represents some of these victims, said:
“While several banks tried to alert Ticketmaster of potential fraud, it took an unacceptable nine weeks for action to be taken, exposing an estimated 1.5 million UK customers,” said Kingsley Hayes, the firm’s head of cyber-crime.
Data Protection Officers are encouraged to read the Monetary Penalty Notice as it not only sets out the reasons for the ICO’s conclusion but also the factors it has taken into account in deciding to issue a fine and how it calculated the amount. This fine follows hot on the heels of the British Airways and Marriott fines which also concerned cyber security breaches. (You can read more about the causes of cyber security breaches in our recent blog post.)
75% of fines issued by the ICO under GDPR relate to cyber security. This is a top regulatory priority for the ICO as well as supervisory authorities across Europe.
Data Protection Officers should place cyber security at the top of their learning and development plan for 2021.
We have some places available on our forthcoming Cyber Security for DPOs workshop. This and other GDPR developments will be covered in our next online GDPR update workshop.
The Information Commissioner’s Office (ICO) has issued a fine to Marriott International Inc for a cyber security breach which saw the personal details of millions of hotel guests being accessed by hackers. The fine does not come as a surprise as it follows a Notice of Intent, issued in July 2018. The amount of £18.4 million though is much lower than the £99 million set out in the notice.
The Data
Marriott estimates that 339 million guest records worldwide were affected following a cyber-attack in 2014 on Starwood Hotels and Resorts Worldwide Inc. The attack, from an unknown source, remained undetected until September 2018, by which time the company had been acquired by Marriott.
The personal data involved differed between individuals but may have included names, email addresses, phone numbers, unencrypted passport numbers, arrival/departure information, guests’ VIP status and loyalty programme membership number. The precise number of people affected is unclear as there may have been multiple records for an individual guest. Seven million guest records related to people in the UK.
The Cyber Attack
In 2014, an unknown attacker installed a piece of code known as a ‘web shell’ onto a device in the Starwood system giving them the ability to access and edit the contents of this device remotely. This access was exploited in order to install malware, enabling the attacker to have remote access to the system as a privileged user. As a result, the attacker would have had unrestricted access to the relevant device, and other devices on the network to which that account would have had access. Further tools were installed by the attacker to gather login credentials for additional users within the Starwood network.
With these credentials, the database storing reservation data for Starwood customers was accessed and exported by the attacker.
The ICO acknowledged that Marriott acted promptly to contact customers and the ICO.
It also acted quickly to mitigate the risk of damage suffered by customers. However it was found to have breached the Security Principle (Article 5(1)(f)) and Article 32 (Security of personal data). The fine only relates to the breaches from 25 May 2018, when GDPR came into effect, although the ICO’s investigation traced the cyber-attack back to 2014.
Data Protection Officers are encouraged to read the Monetary Penalty Notice as it not only sets out the reasons for the ICO’s conclusion but also the factors it has taken into account in deciding to issue a fine and how it calculated the amount.
It is also essential that DPOs have a good understanding of cyber security. We have some places available on our Cyber Security for DPOs workshop in November.
The Information Commissioner, Elizabeth Denham, said:
“Personal data is precious and businesses have to look after it. Millions of people’s data was affected by Marriott’s failure; thousands contacted a helpline and others may have had to take action to protect their personal data because the company they trusted it with had not.”
“When a business fails to look after customers’ data, the impact is not just a possible fine, what matters most is the public whose data they had a duty to protect.”
Marriott said in statement:
“Marriott deeply regrets the incident. Marriott remains committed to the privacy and security of its guests’ information and continues to make significant investments in security measures for its systems. The ICO recognises the steps taken by Marriott following discovery of the incident to promptly inform and protect the interests of its guests.”
Marriott has also said that it does not intend to appeal the fine, but this is not the end of the matter. It is still facing a civil class action in the High Court for compensation on behalf of all those affected by the data breach.
This is the second highest GDPR fine issued by the ICO. On 16th October British Airways was fined £20 million also for a cyber security breach. (You can read more about the causes of cyber security breaches in our recent blog post.) The first fine was issued in December 2019 to Doorstep Dispensaree Ltd for a for a comparatively small amount of £275,000.
This and other GDPR developments will be covered in our new online GDPR update workshop. Our next online GDPR Practitioner Certificate is fully booked.We have added more courses.
GDPR has introduced some new Data Subject rights including the right to erasure and data portability. The familiar right of Subject Access though still remains albeit with some additional obligations. Last week the Information Commissioner’s Office (ICO) published its long awaited right of access detailed guidance following a consultation exercise in December. The guidance provides some much needed clarification on key subject access issues Data Controllers have been grappling with since May 2018.
Reasonable Searches
Sometimes Data Subjects make subject access requests with the aim of creating maximum work for the recipient. “I want to see all the documents you hold which have my name in them, including e mails” is a common one. How much effort has to be made when searching for such information? The new guidance states that Controllers should make reasonable efforts to find and retrieve the requested information. However, they are “not required to conduct searches that would be unreasonable or disproportionate to the importance of providing access to the information.” Factors to consider when determining whether searches may be unreasonable or disproportionate are:
Thus there is no obligation to make every possible effort to find all instances of personal data on the Data Controller’s systems. However, the burden of proof is on Controllers to be able to justify why a search is unreasonable or disproportionate.
Stopping the Clock
Data Controllers have one month to respond to a subject access request. Normally this period starts from the day the request is received. Previously the ICO guidance stated that the day after receipt counted as ‘day one’. They revised their position last year following a Court of Justice (CJEU) ruling.
Data Controllers can ask the Data Subject to clarify their request, if it is unclear what they want, but this often leaves little time to meet the one month deadline. Having considered consultation responses, the ICO’s position now is that where a request requires clarification, in certain circumstances, the clock can be stopped whilst Controllers are waiting for clarification.
Manifestly Unfounded and Excessive
Article 12(5) of GDPR allows Data Controllers to refuse a Data Subject request or charge a fee where it is “manifestly unfounded or excessive.” The burden of proving this is on the Controllers whose staff often struggle with these concepts. The ICO has now provided additional guidance on these terms.
A request may be manifestly unfounded if:
To determine whether a request is manifestly excessive Data Controllers need to consider whether it is clearly or obviously unreasonable. They should base this on whether the request is proportionate when balanced with the burden or costs involved in dealing with the request. This will mean taking into account all the circumstances of the request, including:
The Fee
What can be included when charging a fee for manifestly unfounded or excessive requests? The new guidance says Data Controllers can take into account the administrative costs of:
A reasonable fee may include the costs of:
Staff time can also be included in the above based on the estimated time it will take staff to comply with the specific request, charged at a reasonable hourly rate. In the absence of relevant regulations under the Data Protection Act 2018, the ICO encourages Data Controllers to publish their criteria for charging a fee and how they calculate it.
Finally, the new ICO guidance emphasises the importance of preparation particularity the need to have:
Our Handling Subject Access Requests workshop is now available online. It covers all aspects of dealing with SARs including identifying and applying exemptions. Looking for a GDPR Qualification? Final places left on our online GDPR Practitioner Certificate
On 2nd October 2020, the Hamburg Commissioner for Data Protection and Freedom of Information (Hamburg DP Commissioner) imposed a 35.3 million Euros fine on H&M Hennes &Mauritz for serious breaches of the General Data Protection Regulation (GDPR) at its service centre in Nuremberg. Specifically the breaches related to the covert and extensive monitoring of the personal information of several hundred employees.
The Hamburg DP Commissioner is one of the 16 state Data Protection Commissioners in Germany. Details of the infringement and the fine were posted on the European Data Protection Board’s news feed.
The Facts
H&M had been collecting and recording extensive information about the private lives of its employees since at least 2014. The information was collected by supervisor during “Welcome Back Talks” which took place with employees after absences due to holidays or sickness; even after relatively short absences. Notes of the meetings were stored on a network drive. These included details of the employee’s vacation experiences, or details of their symptoms of illness and diagnosis if they had been taking sick leave. In some cases, supervisors had even obtained and recorded broader information about employees’ private lives such as details of family issues and religious beliefs. Some of the information that was recorded was highly detailed and recorded over extensive periods of time documenting the development of issues.
The information was digitally stored and partly readable by up to fifty other managers throughout the company. The company used this information to meticulously evaluate individual work performance and to obtain a detailed profile of employees for measures and decisions regarding their employment.
Employees were unaware that all this was happening until the data became accessible company-wide for several hours in October 2019 due to a configuration error.
The Hamburg Data Protection Commissioner became aware of this from press reports.
His first action was to order the company to” freeze” the network drive and then hand it over. The company submitted a data record of around 60 gigabytes for evaluation. Evidence from numerous witnesses confirmed the practice of collecting and recording this data.
The Breaches and the Fine
The details of this case are quite shocking both in terms of the volume and type of information that was collected and recorded; the way in which it was done covertly; and the fact that the company used the information to evaluate its employees. The collection and recording of such ‘private information’ for monitoring purposes certainly breached the first three data protection principles in GDPR Article 5. The employees were not aware this was happening; so this was clearly neither fair nor transparent and they were therefore unable to exercise any rights in respect of this data. It is difficult to see what legal basis the company could have used to collect much of this information under both Articles 6 and 9 (the latter for the Special Category Data that was involved). The company collected far more information than was necessary and for much longer than necessary. It also appears that the company was conducting profiling of employees without employees knowledge, thus preventing them from exercising their rights under GDPR Article 22. There was no lawful basis for sharing very privet personal information with over 50 managers. In addition the activities of the company almost certainly breached the employee’s rights under Article 8 of the European Convention of Human Rights.
As the Hamburg Commissioner stated, this was a case of a serious disregard for the rights of the company’s employees.
What steps does H&M have to take now?
Based on the information reported by the European Data Protection Board it appears that the company has put forward a comprehensive plan of how it will take corrective action. The steps include the appointment of a “data protection coordinator” (It is unclear whether this is to be a Data Protection Officer); monthly data protection status updates and more protection for whistle-blowers. This seems to suggest the plan has come from the company rather than the Commissioner and it is not clear whether the Commissioner has used his regulatory powers to enforce this. In the UK the Information Commissioner could enforce these corrective actions by serving an Enforcement Notice under S.149 Data Protection Act 2018.
In addition the company has agreed to pay the employees “considerable compensation” as well as apologising. GDPR Article 82 provides that data subjects who have suffered material or non-material damage as a result of an infringement of the GDPR “shall have the right” to receive compensation from the Data Controller in respect of the damage suffered. According to the EDPB news post this is “an unprecedented acknowledgement of corporate responsibility following a data protection incident”. Whether or not it is unprecedented, it certainly is pragmatic given that the company avoids any protracted legal actions and the further adverse media attention that litigation would inevitably attract.
Readers may be interested in our blogs on GDPR and Employee Surveillance. These and other GDPR developments will be discussed in detail by Ibrahim Hasan in our forthcoming online GDPR update workshop. Why not use the time working from home to achieve a GDPR qualification? Our next online GDPR Practitioner Certificate course is fully booked. There are a few places remaining on the courses following.
