As we come to the end of another year, the Act Now team would like to thank all our delegates for their continued support and our associates for their hard work. It has been a challenging year but we have all taken the opportunity to learn and grow.
Much happened in 2021 in the privacy arena. We had the first GDPR fine Issued to a charity as well as the Cabinet Office finally being fined for the 2020 New Year’s Honours List data breach. In September, the Government launched a consultation entitled “Data: A new direction” intended “to create an ambitious, pro-growth and innovation-friendly data protection regime that underpins the trustworthy use of data.” Cynics will say that it is an attempt to water down the UK GDPR just a few months after the UK received adequacy status from the European Union. Time will tell! We predict that 2022 is going to be the year of AI and Data Ethics. We are planning some workshops to help you navigate through the thorny issues.
It wasn’t all about GDPR. At the end of the year, it seemed like the Government was ready to launch another attack on freedom of information. At present they are distracted by other troubles (unauthorised Christmas parties) but it will be interesting to see if the threat of FOI reform rears its head in 2022.
In 2021 Act Now has been at the forefront of helping the IG/DP community stay abreast of developments and rise to the challenges of working from home and continuing to learn. We have delivered over 250 online workshops and launched some great new courses and products including our Advanced Certificate in GDPR Practice. We intended to run 3 of these certificate courses in 2021. Such was the demand that we ran a total of 8, all of which were fully booked. With some great reviews, we will continue to improve this course. Watch this space for some exciting and challenging new courses in 2022. Alongside our usual training programme, we ran a number of free webinars on a range of topics including cyber security, risk management and the CCPA.
Act Now has also continued to raise the media profile of Information Governance in 2021. Ibrahim Hasan was interviewed twice by the BBC on a variety of topics including footballers’ data, data breaches and vaccine passports. He was also on RT News talking about FOI.
Data Protection is going global. With laws being passed in the Middle East, Africa and North America, we are now looking to spread the information privacy message further afield by promoting our US CCPA and Dubaiprivacy programmes. We have exciting announcements planned in 2022.
2021 ended with some great news. Act Now Training won the Information and Records Management Society (IRMS) Supplier of the year award at the IRMS conference in Birmingham. We were also delighted to welcome solicitor and information law expert, Kate Grimley Evans, to our team of associates. Kate is a Fee Paid Member of the Upper Tribunal.
These are exciting times for information governance professionals. Act Now is committed to raising awareness and the importance of Information Rights. We want to continue to support IG professionals with their professional development by developing training that helps them to navigate this often complex but interesting area.
The Act Now office will be closed for the holiday season from Thursday the 23rd December. We will be back in the office from the 5th January 2021.
Wishing you all a safe and enjoyable Christmas and a successful new year.
Last week, a government minister called the Freedom of Information Act (FOI) a “truly malign piece of legislation”. Lord Callanan, a minister at the Department for Business, Energy & Industrial Strategy, made the comments during a parliamentary debate. He was defending the government’s decision that FOI should not apply to a new Defence research agency.
It is not surprising that a government minister has expressed his dislike of FOI. The Act is very popular amongst politicians but only when they are in opposition. This view rapidly changes when they take up government positions and are on the receiving end of FOI requests. Tony Blair introduced the Act but regretted it in his memoirs, calling himself “a naive, foolish, irresponsible nincompoop”.
This new attack on FOI is not just about the Advanced Research and Invention Agency (ARIA) and whether it should be subject to FOI. This a minister expressing his frustrations about legislation which has no doubt made the Government’s life more difficult especially during the Pandemic. Information requests have been made about key government decisions, the actions of advisers in allegedly breaking lockdown rules (Barnard Castle) and the award of lucrative PPE supplies contracts to companies who seemingly have little experience of the health sector. In July, the Information Commissioner launched an investigation into reports that ministers and senior officials have been using private correspondence channels, such as Whatsapp and private email accounts, to conduct sensitive official business.
FOI allows the public to see how their money is being spent. It is extraordinary that a body like ARIA, which is responsible for spending £800 million of public funds over four years, should be free from the scrutiny that applies to the whole public sector including small parish councils. ARIA will be tasked with handing out lucrative research contracts and so the public have a right to know how their money will be spent.
Lord Callanan also said that charging the public fees for requesting government information was an “excellent idea”. This idea has also been backed by the incoming Information Commissioner, John Edwards. He told a committee of MPs in September that it was “legitimate” to ask the public to meet the cost of digging out the relevant information.
One of the governments arguments for introducing fees is that it costs money to deal with complex freedom of information request. However the current legislation already allows for fees to be charged if a request takes more than 18 hours to deal with or 24 hours if made to a government department.
Introducing a flat fee or fees for all requests, will undermine the public’s trust in government. At a time when the economy is weak and the cost of living is going up, why should the public have to pay for information that has been gathered by public bodies using public funds? In a sense they would be asked to pay for it twice. Fees also mean that only the rich would be able to scrutinise and challenge decisions made by public bodies which affect their lives.
It could be that Lord Callanan’s comments signal the start of a government attempt to weaken FOI. If this is the case, bearing in mind Boris Johnson’s parliamentary majority, we should all be concerned. The Government must lead by example and not weaken FOI because it is a hindrance.
Watch Ibrahim Hasan’s interview with RT News here.
Act Now Training welcomes solicitor and information law expert, Kate Grimley Evans, to its team of associates. Kate specialises in helping clients with all aspects of data protection and freedom of information. She was formerly the Head of Information Law at Stone King LLP. She has also worked for other top law firms including Eversheds and Mills & Reeve. Kate is currently a Consultant Solicitor for Bates Wells and Kesteven Partners Limited.
Kate is an expert in her field and has specialist knowledge of data protection compliance in the education and charity law sectors. She is the author of the leading guidance on data protection and information law matters for the museums’ sector and is currently writing a chapter (on schools) for an Oxford University Press book on data protection.
Kate has spoken at high profile conferences such as the Grammar School Heads’ Association Conference, Institute of School Business Leaders Conference and the Optimus Education Conference. Like our other associate Susan Wolf, Kate is a Fee Paid Member of the Upper Tribunal assigned to the Administrative Appeals Chamber (Information Rights Jurisdiction) and First Tier Tribunal General Regulatory Chamber (Information Rights Jurisdiction).
Ibrahim Hasan, director of Act Now Training, said:
“I am delighted that Kate has joined our team. Her wealth of experience in the education and charity sectors, will help us develop further our training and consultancy offerings to these important sectors.”
In time Kate will be delivering all the workshops on our current programme as well as developing new ones. She will also be available to conduct audits and health checks and deliver in house training particularly for charities and schools.
The Honours List file contained the details of 1097 people, including the singer Sir Elton John, cricketer Ben Stokes, the politician Iain Duncan Smith and the TV cook Nadiya Hussain. More than a dozen MoD employees and senior counter-terrorism officers as well as holocaust survivors were also on the list which was published online at 10.30pm on Friday 26th December 2019. After becoming aware of the data breach, the Cabinet Office removed the weblink to the file. However, the file was still cached and accessible online to people who had the exact webpage address.
The personal data was available online for a period of two hours and 21 minutes and it was accessed 3,872 times. The vast majority of people on the list had their house numbers, street names and postcodes published with their name. One of the lessons here is, always have a second person check the data before pressing “publish”.
This is the first ever GDPR fine issued by the ICO to a public sector organisation. A stark contrast to the ICO’s fines under the DPA 1998 where they started with a local authority. Article 82(1) sets out the right to compensation:
“Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered.”
It will be interesting to see how many of the affected individuals pursue a civil claim.
(See also our blog post from the time the breach was reported.)
The awards ceremony took place on Monday night at the IRMS Conference in Birmingham. Act Now was also nominated for two others awards. Congratulations to all the other winners.
Ibrahim Hasan said:
“I would like to thank the IRMS as well as the Act Now team. This award recognises the hard work of our colleagues who are focussed on fantastic customer service as well as our experienced associates who deliver great practical content and go the extra mile for our delegates. We are committed to helping advance the profession and raising the awareness of the importance of Information Rights as a fundamental Human Right; and enable a culture of respect and trust within organisations.”
The Innovation of the Year award went to Dapian which is a cloud based programme designed to assist those conducting Data Protection Impact Assessments and Information Sharing Agreements. Act Now helped develop Dapian alongside nine organisations from the public and private sector including the IRMS.
Despite the pandemic, it has been a fantastic year for Act Now. We have delivered over 250 online workshops and launched some great new courses and products. Our Advanced Certificate in GDPR Practice has been really well received by experienced GDPR practitioners who want to enhance their skills and knowledge. We have run eight fully booked courses this year with fantastic reviews. We have also launched our very popular UK and EU GDPR Handbooks.
We have exciting plans for 2022. Watch this space!
In the world of Law Enforcement, Data Protection is about compliance with both the UK GDPR and the Law Enforcement Directive (LED) as implemented by Part 3 of the Data Protection Act 2018. This does not just cover the police but any ‘competent authority’ with a ‘law enforcement purpose’ e.g. local authority regulatory services.
While Part 3 is very similar to the GDPR, it is starkly different in a few key areas and can confuse those who do not deal with it regularly. A recent Scottish case shows that even the ICO can get it wrong.
As part of our growing range of practical workshops for data protection professionals, Act Now Training has launched a full day workshop on this important topic. Our expert trainer, Scott Sammons, will cover the basic requirements under the LED principles, look at practical steps, explore the LED SAR exemptions and see where you can re-use your GDPR controls for an LED purpose.
This workshop can also be customised and delivered to your organisation at your premises or virtually. Get in touch to learn more.
Last week, the UK Supreme Court handed down its much anticipated judgement in the case of Lloyd v Google LLC  UKSC 50. It is a significant case because it answers two important questions (1) whether US style class action lawsuits can be brought for data protection claims and (2) whether damages can be claimed for mere “loss of control” of personal data where no actual damage has been suffered by data subjects. If the Supreme Court had decided that the answer to either of these questions was “yes”, it would have resulted in Data Controllers being targeted with much more costly data breach litigation.
The present case was brought by Richard Lloyd, a former director of consumer rights group Which?, who alleged that between 2011 and 2012, Google cookies collected data on health, race, ethnicity, sexuality and finance through Apple’s Safari web browser, even when users had chosen a “do not track” privacy setting on their phone. Mr Lloyd sought compensation, under section 13 of the old Data Protection Act 1998.
Mr Lloyd sought to bring a claim in a representative capacity on behalf of 4 million consumers; a US style “class action”. In the UK, such claims currently need consumers to opt-in, which can be a lengthy process (and costly). Mr Lloyd attempted to set a precedent for opt-out cases, meaning one representative could bring an action on behalf of millions without the latter’s consent. He sought to use Rule 19.6 of the Civil Procedure Rules which allows an individual to such bring a claim where all members of the class have the “same interest” in the claim. Because Google is a US company, Mr Lloyd needed the permission of the English court to pursue his claim. Google won in the High Court only for the decision to be overturned by the Court of Appeal. If Mr Lloyd had succeeded in the Supreme Court on appeal, it could have opened the floodgates to many more mass actions against tech firms (and other data controllers) for data breaches.
The Supreme Court found class actions impermissible in principle in the present case. It said that, in order to advance such an action on behalf of each member of the proposed represented class, Mr Lloyd had to prove that each one of those individuals had both suffered a breach of their rights and suffered actual damage as a result of that breach. Mr. Lloyd had argued that a uniform sum of damages could be awarded to each member of the represented class without having to prove any facts particular to that individual. In particular, he had argued that compensation could be awarded under the DPA 1998 for “loss of control” of personal data constituted by any non–trivial infringement by a data controller of any of the requirements of the DPA 1998.
The Supreme Court rejected these arguments for two principal reasons. Firstly, the claim was based only on section 13 of the DPA 1998, which states that “an individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage”. The court ruled that “damage” here means material damage, such as financial loss or mental distress, as caused by unlawful processing of personal data in contravention of the DPA 1998 (i.e. simply infringing the DPA 1998 does not in itself constitute “damage”). Secondly, in order to recover compensation under section 13 of the DPA 1998, it is necessary to prove what unlawful processing (by Google) of personal data relating to each individual actuallyoccurred. A representative claim could have been brought to establish whether Google was in breach of the DPA 1998 as a basis for pursuing individual claims for compensation but not here where Mr Lloyd was claiming the same amount of damages (£750) for each of the 4 million iPhone users.
This case was decided under the DPA 1998. Article 82(1) of the UK GDPR sets out the right to compensation now; “Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered”. The similar wording to the DPA 1998 means that the outcome would be the same if Mr Lloyd had commenced his action post GDPR.
The Lloyd-Google judgment means that those seeking to bring class-action data protection infringement compensation cases have their work cut out. However, claims under Art 82 can still be brought on an individual basis – in fact the judgment seems to indicate that individual cases can have good prospects of success. There is more to come in this area. TikTok is facing a similar case, brought by former Children’s Commissioner Anne Longfield, which alleges that the video-sharing app used children’s data without informed consent.
The code is not law nor does it ‘enforce’ data sharing, but it does provide some useful steps to consider when sharing personal data either as a one off or as part of an ongoing arrangement. Data Protection professionals, and the staff in the organisations they serve, will still need to navigate a way through various pressures, frameworks, and expectations on the sharing of personal data; case by case, framework by framework. A more detailed post on the contents of the code can be read here.
Act Now Training is pleased to announce a new full day ‘hands on’ workshop for Data Protection professionals on Data Sharing. Our expert trainer, Scott Sammons, will look at the practical steps to take, sharing frameworks and protocols, risks to consider etc. Scott will also explore how, as part of your wider IG framework, you can establish a proactive support framework; making it easier for staff to understand their data sharing obligations/expectations and driving down the temptation to use a ‘Data Protection Duck out’ for why something was shared/not shared inappropriately.
Delegates will also be encouraged to bring a data sharing scenario to discuss with fellow delegates and the tutor. This workshop can also be customised and delivered to your organisation at your premises or virtually. Get in touch to learn more.
In October, there was a decision in the Scottish courts which will be of interest to data protection practitioners and lawyers when interpreting Part 3 of the Data Protection Act 2018 (law enforcement processing) and more generally the UK GDPR.
The General Teaching Council For Scotland v The Chief Constable of The Police Service of Scotland could fairly be described as a skirmish about expenses (known as costs in other parts of the UK) in seven Petitions to the Court of Session by the General Teaching Council for Scotland (“GTCS”) against the Chief Constable of the Police Service of Scotland (“Police Scotland”). The petitions essentially sought disclosure of information, held by Police Scotland, to the GTCS which the GTCS had asked Police Scotland for, but which the latter had refused to provide.
This case will be of interest to data protection practitioners for two reasons: (1) there is some consideration by Lord Uist as to what “authorised by law” means in the context of processing personal data under Part 3 DPA 2018 for purposes other than law enforcement purposes; and (2) it contains a salutary reminder that while advice from the Information Commissioner’s Office (ICO) can be useful, it can also be wrong; as well as the responsibilities of data controllers in relation to their decisions.
The GTCS is the statutory body responsible for the regulation of the teaching profession in Scotland. They are responsible for assessing the fitness of people applying to be added to the register of teachers in Scotland as well as the continuing fitness of those already on the register. In reliance of these functions, the GTCS had requested information from Police Scotland in order to assist it in fulfilling these duties. The information held by Police Scotland was processed by them for the law enforcement purposes; it thus fell within Part 3 of the DPA 2018. In response, the GTCS petitioned the Court of Session for orders requiring Police Scotland to release the information. Police Scotland did not oppose the Petitions and argued that it should not be found liable for the expenses of the GTCS in bringing the Petitions to the court. This was on the basis that it had not opposed them and it could not have given the GTCS information without the court’s order.
The ICO advice to Police Scotland
Police Scotland refused to supply the information without a court order on the basis that to do so would be processing the personal data for purposes other than the law enforcement purposes where the disclosure was authorised by law in contravention of the second Data Protection Principle under Section 36 of the DPA 2018 which states:
“(1) The second data protection principle is that – (a) the law enforcement purpose for which personal data is collected on any occasion must be specified, explicit and legitimate, and (b) personal data so collected must not be processed in a manner that is incompatible with the purpose for which it was collected.
(2) Paragraph (b) of the second data protection principle is subject to subsections (3) and (4).
(3) Personal data collected for a law enforcement purpose may be processed for any other law enforcement purpose (whether by the controller that collected the data or by another controller) provided that –
(a) the controller is authorised by law to process that data for the other purpose, and (b) the processing is necessary and proportionate to that other purpose.
(4) Personal data collected for any of the law enforcement purposes may not be processed for a purpose that is not a law enforcement purpose unless the processing is authorised by law.”
Police Scotland was relying upon advice from the ICO. That advice was that Police Scotland “would require either an order of the court or a specific statutory obligation to provide the information”, otherwise Police Scotland would be breaching the requirements of the DPA 2018. A longer form of the advice provided by the ICO to Police Scotland may be found at paragraph 10 of Lord Uist’s decision.
The ICO’s advice to Police Scotland was in conflict with what the ICO said in its code of practice issued under section 121 of the DPA 2018. There the ICO said that “authorised by law” could be “for example, statute, common law, royal prerogative or statutory code”.
Authorised by Law
Lord Uist decided that the position adopted by Police Scotland, and the advice given to them by the ICO, was “plainly wrong”; concluding that the disclosure of the information requested by the GTCS would have been authorised by law without a court order.
The law recognises the need to balance the public interest in the free flow of information to the police for criminal proceedings, which requires that information given in confidence is not used for other purposes, against the public interest in protecting the public by disclosing confidential information to regulatory bodies charged with ensuring professionals within their scope of responsibility are fit to continue practising. In essence, when the police are dealing with requests for personal data processed for law enforcement purposes by regulatory bodies, they must have regard to the public interest in ensuring that these regulatory bodies, which exist to protect the public, are able to carry out their own statutory functions.
Perhaps more significantly, the law also recognises that a court order is not required for such disclosures to be made to regulatory bodies. This meant that there was, at common law, a lawful basis upon which Police Scotland could have released the information requested by the GTCS to them. Therefore, Police Scotland would not have been in breach of section 36(4) of the DPA 2018 had they provided the information without a court order.
In essence, a lack of a specific statutory power to require information to be provided to it, or a specific statutory requirement on the police to provide the information, does not mean a disclosure is not authorised by law. It is necessary, as the ICO’s code of practice recognises, to look beyond statute and consider whether there is a basis at common law.
Police Scotland was required by Lord Uist to meet the expenses of the GTCS in bringing the Petitions. This was because the Petitions had been necessitated by Police Scotland requiring a court order when none was required. Lord Uist was clear that Police Scotland had to take responsibility for their own decision; it was not relevant to consider that they acted on erroneous advice from the ICO.
This case serves as a clear reminder that, while useful, advice from the ICO can be wrong. The same too, of course, applies in respect of the guidance published by the ICO. It can be a good starting point, but it should never be the starting and end point. When receiving advice from the ICO it is necessary to think about that advice critically; especially where, as here, the advice contradicts other guidance published by the ICO. It is necessary to consider why there is a discrepancy and which is correct: the advice or the guidance? It may, of course, be the case that both are actually incorrect.
The finding of liability for expenses is also a reminder that controllers are ultimately responsible for the decisions that they take in relation to the processing of personal data. It is not good enough to effectively outsource that decision-making and responsibility to the ICO. Taking tricky questions to the regulator does not absolve the controller from considering the question itself, both before and after seeking the advice of the ICO.
Finally, this case may also be a useful and helpful reference point when considering whether something is “authorised by law” for the purposes of processing under Part 3 of the DPA 2018. It is, however, a first instance decision (the Outer House of the Court of Session being broadly similar in status to the High Court in England and Wales) and that ought to be kept in mind when considering it.
Alistair Sloan is a Devil (pupil) at the Scottish Bar; prior to commencing devilling he was a solicitor in Scotland and advised controllers, data protection officers and data subjects on a range of information law matters.
A Scottish charity has been issued with a £10,000 monetary penalty notice following the inadvertent disclosure of personal data by email.
On 18th October, HIV Scotland was found to have breached the security provisions of the UK GDPR, namely Articles 5(1)(f) and 32, when it sent an email to 105 people which included patient advocates representing people living with HIV. All the email addresses were visible to all recipients, and 65 of the addresses identified people by name. From the personal data disclosed, an assumption could be made about individuals’ HIV status or risk.
The Information Commissioner’s Office (ICO) is urging organisations to revisit their bulk email practices after its investigation found shortcomings in HIV Scotland’s email procedures. These included inadequate staff training, incorrect methods of sending bulk emails by blind carbon copy (bcc) and an inadequate data protection policy. It also found that despite HIV Scotland’s own recognition of the risks in its email distribution and the procurement of a system which enables bulk messages to be sent more securely, it was continuing to use the less secure bcc method seven months after the incident.
On the point of training, HIV Scotland confirmed to the ICO that employees are expected to complete the “EU GDPR Awareness for All” on an annual basis. The ICO recommended that staff should receive induction training “prior to accessing personal data and within one month of their start date.” Act Now’s e learning course, GDPR Essentials, is designed to teach employees about the key provisions of GDPR and how to keep personal data safe. The course is interactive with a quiz at the end and can be completed in just over 30 minutes. Click here to watch a preview.
This is an interesting case and one which will not give reassurance tothe Labour Relations Agency in Northern Ireland which had to apologise last week for sharing the email addresses and, in some cases ,the names of more than 200 service users. The agency deals confidentially with sensitive labour disputes between employees and employers. It said it had issued an apology to recipients and was currently taking advice from the ICO.
Interestingly the ICO also referenced in its ruling, the fact that HIV Scotland made a point of commenting on a similar error by another organisation 8 months prior. In June 2019, NHS Highland disclosed the email addresses of 37 people who were HIV positive. It is understood the patients in the Highlands were able to see their own and other people’s addresses in an email from NHS Highland inviting them to a support group run by a sexual health clinic. At the time HIV Scotland described the breach as “unacceptable”.
The HIV Scotland fine is the second one the ICO has issued to a charity in the space of 4 months. On 8th July 2021, the transgender charity Mermaids was fined £25,000 for failing to keep the personal data of its users secure. The ICO found that Mermaids failed to implement an appropriate level of security to its internal email systems, which resulted in documents or emails containing personal data being searchable and viewable online by third parties through internet search engine results.
Charities need to consider these ICO fines very carefully and ensure that they have polices, procedures and training in place to avoid enforcement action by the ICO.