In July the Government published the Data Protection and Digital Information Bill, the next step in its much publicised plans to reform the UK Data Protection regime following Brexit.
In the Government’s response to the September 2021 consultation (“Data: A New Direction”) it said it intended “to create an ambitious, pro-growth and innovation-friendly data protection regime that underpins the trustworthy use of data.” To achieve this, the new Bill proposes substantial amendments to existing UK data protection legislation; namely the UK GDPR, the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”). There is no shiny new Data Protection Act 2022 or even a new colour for the UK GDPR! Perhaps a missed opportunity to showcase the benefits of Brexit!
In addition to reforming core data protection law, the Bill deals with certification of digital identity providers, electronic registers of births and deaths and information standards for data-sharing in the health and adult social care system. The notable DP provisions are set out below.
Amended Definition of Personal Data
Clause 1 of the Bill limits the scope of personal data to:
- where the information is identifiable by the controller or processor by reasonable means at the time of the processing; or
- where the controller or processor ought to know that another person will likely obtain the information as a result of the processing and the individual will likely be identifiable by that person by reasonable means at the time of the processing.
This proposed change would limit the assessment of identifiability of data to the controller or processor, and persons who are likely to receive the information, rather than anyone in the world. It could make it easier for organisations to achieve data anonymisation as they would no longer need to concern themselves with potential future identifiability, with the focus instead being on identifiability “at the time of the processing”. On the other hand, the change does not address the risk of indirect identification.
Vexatious Data Subject Requests
Article 12 of the UK GDPR allows controllers to refuse to comply with data subject rights requests (or charge a fee) when the requests are “manifestly unfounded” or “excessive”. Clause 7 of the Bill proposes to replace this with “vexatious” or “excessive”. Examples of vexatious requests given in the Bill are those requests intended to cause distress, not made in good faith, or that are an abuse of process. All these could easily fit into “manifestly unfounded” and so it is difficult to understand the need for change here.
Data Subject Complaints
Currently, the UK GDPR allows a data subject to complain to the Information Commissioner, but nothing expressly deals with whether or how they can complain to a controller. Clause 39 of the Bill would make provision for this and require the controller to acknowledge receipt of such a complaint within 30 days and respond substantively “without undue delay”. However, under clause 40, if a data subject has not made a complaint to the controller, the ICO is entitled not to accept the complaint.
Much was made about “privacy management programmes” in the Government’s June announcement. These are not expressly mentioned in the Bill but most of the proposals that were to have fallen under that banner are still there (see below).
Senior Responsible Individuals
As announced in June, the obligation for some controllers and processors to appoint a Data Protection Officer (DPO) is proposed to be removed. However, public bodies and those who carry out processing likely to result in a “high risk” to individuals, are required (by clause 14) to designate a senior manager as a “Senior Responsible Individual”. Just like the DPO, the SRI must be adequately resourced and cannot be dismissed for performing their tasks under the role. The requirement for them to be a senior manager (rather than just reporting to senior management, as current DPOs must) will cause problems for those organisations currently using outsourced DPO services.
ROPAs and DPIAs
The requirement for Records of Processing Activities (ROPAs) will also go. Clause 15 of the Bill proposes to replace it with a leaner “Record of Processing of Personal Data”. Clause 17 will replace Data Protection Impact Assessments (DPIAs) with leaner and less prescriptive Assessments of High Risk Processing. Clause 18 ensures that controllers are no longer required, under Article 36 of the UK GDPR, to consult the ICO on certain high risk DPIAs.
Automated Decision Making
Article 22 of UK GDPR currently confers a “right” on data subjects not to be subject to automated decision making which produces legal effects or otherwise significantly affects them. Clause 11 of the Bill reframes Article 22 in terms of a positive right to human intervention. However, it would only apply to “significant” decisions, rather than decisions that produce legal effects or similarly significant effects. It is unclear whether this will make any practical difference.
The judgment of the European Court of Justice (ECJ) in “Schrems II” not only stated that organisations that transfer personal data to the US can no longer rely on the Privacy Shield Framework as a legal transfer tool. It also said that in any international data transfer situation, whether to the USA or other countries, the data exporter needs to make a complex assessment about the recipient country’s data protection legislation to ensure that it adequately protects the data especially from access by foreign security agencies (a Transfer Impact Assessment or TIA) .
The Bill amends Chapter 5 of the UK GDPR (international transfers) with the introduction of the “data protection test” for the above mentioned assessment. This would involve determining if the standard of protection provided for data subjects in the recipient country is “not materially lower” than the standard of protection in the UK. The new test would apply both to the Secretary of State, when making “adequacy” determinations, and to controllers, when deciding whether to transfer data. The explanatory notes to the Bill state that the test would not require a “point- by-point comparison” between the other country’s regime and the UK’s. Instead an assessment will be “based on outcomes i.e. the overall standard of protection for a data subject”.
An outcome based approach will be welcome by organisations who regularly transfer personal data internationally especially where it is of no practical interest to foreign security agencies. However, this proposed approach will attract the attention of the EU (see later). (see also our forthcoming International Transfers webinar).
The Information Commission
Under clause 100 of the Bill, the Information Commissioner’s Office will transform into the Information Commission; a corporate body with a chief executive (presumably John Edwards, the current Commissioner).
The Commission would have a principal function of overseeing data protection alongside additional duties such as to have regard to the desirability of promoting innovation; the desirability of promoting competition; the importance of the prevention, investigation, detection and prosecution of criminal offences; and the need to safeguard public security and national security. New powers for the Commission include an audit/assessment power (clause 35) to require a controller to appoint a person to prepare and provide a report and to compel individuals to attend for interviews (clause 36) in civil and criminal investigations.
The Bill also proposes to abolish the Surveillance Camera Commissioner and the Biometrics Commissioner.
Privacy and Electronic Communications (EC Directive) Regulations 2003
Currently, under PECR, cookies (and similar technologies) can only be used to store or access information on end user terminal equipment without express consent where it is “strictly necessary” e.g. website security or proper functioning of the site. The Bill proposes allowing cookies to be used without consent for the purposes of web analytics and to install automatic software updates (see the GDPR enforcement cases involving Google Analytics).
Another notable proposed change to PECR, involves extending “the soft opt-in” to electronic communications from organisations other than businesses. This would permit political parties, charities and other non-profits to send unsolicited email and SMS direct marketing to individuals without consent, where they have an existing supporter relationship with the recipient.
Finally on PECR, the Bill proposes to increase the fines for infringement from the current maximum of £500,000 to UK GDPR levels i.e. up to £17.5m of 4% of global annual turnover (whichever is higher).
The Bill would give the Secretary of State and the Treasury the power to issue regulations requiring “data holders” to make available “customer data” and “business data” to customers or third parties, as well as regulations requiring certain processing, such as collection and retention, of such data. “Customers” would not just be data subjects, but anyone who purchased (or received for free) goods, services or digital content from a trader in a consumer (rather than business) context. “Business data” would include information about goods, services and digital content supplied or provided by a trader. It would also include information about where those goods etc. are supplied, the terms on which they are supplied or provided, prices or performance and information relating to feedback from customers. Customers would potentially have a right to access their data, which might include information on the customer’s usage patterns and the price paid to aid personalised price comparisons. Similarly, businesses could potentially be required to publish, or otherwise make available, business data.
These provisions go much further than existing data portability provisions in the UK GDPR. The latter does not guarantee provision of data in “real time”, nor cover wider contextual data. Nor do they apply where the customer is not an individual.
The Bill is currently making its way through Parliament. The impact assessment reiterates that “the government’s view is that reform of UK legislation on personal data is compatible with the EU maintaining free flow of personal data from Europe.” However, with the multiple amendments proposed in the Bill, the UK GDPR is starting to look quite different to the EU version. And the more the two regimes diverge, the more there is a risk that the EU might put a “spanner in the works” when the UK adequacy assessment is reviewed in 2024. Much depends on the balance struck in the final text of the Bill.
This and other GDPR developments will be discussed in detail on our forthcoming GDPR Update workshop. We also have a few places left on our Advanced Certificate in GDPR Practice course starting in September.