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Analysis and Commentary about Global Data Protection Laws, Including GDPR, FOI, Cyber Security and Surveillance
As we end another year, the Act Now team would like to wish everyone ‘Seasons’ greetings’ and best wishes for the new year. Thank you to all our delegates and colleagues for their continued support and dedication.
Our office will be closed for the holiday season from Thursday, 22nd December, and we will return on Wednesday, 4th January 2023.
What is happening with the Government’s proposal for UK GDPR reform? Just like Donald Trump’s predicted “Red Wave” in the US Mid Term Elections, it’s turning out to be a bit of a ripple!
In July the Boris Johnson Government, published the Data Protection and Digital Information Bill. This was supposed to be the next step in its much publicised plans to reform the UK Data Protection regime following Brexit. The government projected it would yield savings for businesses of £1billion over ten years. (Key provisions of the bill are summarised in our blog post here.)
On 3rd October 2022, during the Conservative Party Conference, Michelle Donelan, the new Secretary for State for Digital, Culture, Media and Sport (DCMS), made a speech announcing a plan to replace the UK GDPR with a new “British data protection system”.
The Bill’s passage through Parliament was suspended. It seemed that drafters would have to go back to the drawing board to showcase even more “Brexit benefits”. There was even talk of another round of consultation. Remember the Bill is the result of an extensive consultation launched in September 2021 (“Data: A New Direction”).
Last week, Ibrahim Hasan, attended the IAPP Conference in Brussels. Owen Rowland, Deputy Director at the DCMS, told the conference that the latest “consultation” on the stalled bill will begin shortly. However he confirmed it will not be a full-blown public consultation:
“It’s important to clarify (the type of consultation). However, we are genuinely interested in continuing to engage with the whole range of stakeholders. Different business sectors as well as privacy and consumer groups,” Rowland said. “We’ll be providing details in the next couple of weeks in terms of the opportunities that we are going to particularly set up.”
The Bill may not receive a deep overhaul, but Rowland said he welcomes comments that potentially raise “amendments to (the existing proposal’s) text that we should make.” He added the consultation is being launched to avoid “a real risk” of missing important points and to provide “opportunities were not fully utilising” to gain stakeholder insights.
Rowland went on to suggest that the DCMS would conduct some roundtables. If any of our readers are invited to the aforementioned tables (round or otherwise) do keep us posted. Will it make a difference to the content of the bill? We are sceptical but time will tell.
This and other GDPR developments will be discussed in detail on our forthcoming GDPR Update workshop. Are you an experienced GDPR Practitioner wanting to take your skills to the next level? See our Advanced Certificate in GDPR Practice.
‘AI’ and/or ‘Machine Learning’ as it’s known is becoming more prevalent in the working environment. From ‘rogue algorithms’ upsetting GCSE gradings through to Microsoft 365 judging you for only working on one document all day, we cannot escape the fact that there are more ‘automated’ services than ever before.
For DPOs, records managers and IG officers, this poses some interesting challenges to the future of records, information and personal data.
I was asked to talk about the challenges of AI and machine learning at a recent IRMS Public Sector Group webinar. In the session titled ‘IRM challenges of AI & something called the ‘metaverse’ we looked at a range of issues, some of which I’d like to touch on a little bit below. While I remain unconvinced the ‘metaverse’ is going to arrive any time soon, AI and algorithms very much are here and are growing fast.
From a personal data and privacy point of view, we know that algorithms guide our online lives. From what adverts we see to what posts come up on our feed on Twitter, Facebook etc. How is that not creepy that this algorithm knows more about me than I do? And how does that go before it has mass implications for everyday citizens. What happens if the ‘social algorithm’ works out your sexuality before you or your family has? I work with families that still to this day will abuse and cast out those that are LGBTQ+, so imagine the damage a ‘we thought you’d like this’ post would do.
Interesting questions have been posed on Twitter about ‘deep fake’ videos and whether they are personal data. The answers are mixed and pose some interesting implications for the future. Can you imagine the impact if someone can use AI to generate a video of you doing something you are not meant to? That’s going to take some doing to undo by which time, the damage is done. If you want to see this in action, I’d recommend watching Season 2 of ‘Capture’ on BBC iPlayer.
In an organisational context, if organisations are to use algorithms to help with workload and efficient services it is simple logic that the algorithm must be up to scratch. As the Borg Queen (a cybernetic alien) in Star Trek First Contact once said to Data (a self aware android) “you are an imperfect being, created by an imperfect being. Finding your weakness is only a matter of time”. If anyone can find me a perfectly designed system that doesn’t have process issues, bugs and reliability issues, do let me know.
Many data scientists and other leading data commentators like Cathy O’Neill frequently state that “Algorithms are basically opinions embedded in code”. And opinions bring with them biases, shortcomings and room for error.
Now, that is not to say that these things do not have their advantages – they very much do. However, in order to get something good out of them you need to ensure good stuff goes into them and good stuff helps create them. Blindly building and feeding a machine just because it’s funky and new, as we have all seen time and again, always leads to trouble.
Myself and Olu attended (me virtually and Olu in person) the launch of the AI Standards Hub by the Alan Turning Institute (and others). A fascinating initiative by the ATI and others, including UK Government.
Now why am I talking about this at the moment? Put simply, as I mentioned above, this technology is here and is not going anywhere. Take look at this company offering live editing of your voice, and you may even find this conversation between a google engineer and an AI quite thought provoking and sometimes scary. If anything, AI is evolving at an ever growing pace. Therefore information professionals from all over the spectrum need to be aware of how it works, how it can be used in your organisation, and how you can upskill to challenge and support it.
In recent times the ICO has been publishing a range of guidance on this, including a relatively detailed guide on how to use AI and consider Data Protection implications. While it’s not a user manual it does give some key points to consider and steps to go through.
Right Alexa, end my blog! oh I mean, Hey Siri, end my blog… Darn… OK Google…
If you are interested in learning more about the IRM & DP challenges with ‘AI’ and upskilling as a DPO, Records or Information Governance Manager then check out Scott’s workshop on Artificial Intelligence and Machine Learning, How to implement Good Information Governance. Book your place for 17th November now.
Last week, the Department for Education received a formal reprimand from the Information Commissioner’s Office(ICO) over a “serious breach” of the GDPR involving the unauthorised sharing of up to 28 million children’s personal data. But the Department has avoided a fine, despite a finding of “woeful” data protection practices.
The reprimand followed the ICO’s investigation into the sharing of personal data stored on the Learning Records Service (LRS) database, for which the DfE is the Data Controller. LRS provides a record of pupils’ qualifications that education providers can access. It contains both personal and Special Category Data and at the time of the incident there were 28 million records stored on it. Some of those records would have pertained to children aged 14 and over.
The ICO started its investigation after receiving a breach report from the DfE about the unauthorised access to the LRS database. The DfE had only become aware of the breach after an exposé in a national Sunday newspaper.
The ICO found that the DfE’s poor due diligence meant that it continued to grant Trustopia access to the database when it advised the DfE that it was the new trading name for Edududes Ltd, which had been a training provider. Trustopia was in fact a screening company and used the database to provide age verification services to help gambling companies confirm customers were over 18. The ICO ruled that the DfE failed to:
The ICO conducted a simultaneous investigation into Trustopia, during which the company confirmed it no longer had access to the database and the cache of data held in temporary files had been deleted. Trustopia was dissolved before the ICO investigation concluded and therefore regulatory action was not possible.
The DfE has been ordered to implement the following five measures to improve its compliance:
This investigation could, and many would say should, have resulted in a fine. However, in June 2022 John Edwards, the Information Commissioner, announced a new approach towards the public sector with the aim to reduce the impact of fines on the sector. Had this new trial approach not been in place, the DfE would have been issued with a fine of over £10 million. In a statement, John Edwards said:
“No-one needs persuading that a database of pupils’ learning records being used to help gambling companies is unacceptable. Our investigation found that the processes put in place by the Department for Education were woeful. Data was being misused, and the Department was unaware there was even a problem until a national newspaper informed them.
“We all have an absolute right to expect that our central government departments treat the data they hold on us with the utmost respect and security. Even more so when it comes to the information of 28 million children.
“This was a serious breach of the law, and one that would have warranted a £10 million fine in this specific case. I have taken the decision not to issue that fine, as any money paid in fines is returned to government, and so the impact would have been minimal. But that should not detract from how serious the errors we have highlighted were, nor how urgently they needed addressing by the Department for Education.”
The ICO also followed its new public sector enforcement approach when issuing a reprimand to NHS Blood and Transplant Service. In August 2019, the service inadvertently released untested development code into a live system for matching transplant list patients with donated organs. This error led to five adult patients on the non-urgent transplant list not being offered transplant livers at the earliest possible opportunity. The ICO said that, if the revised enforcement approach had not been in place, the service would have received a fine of £749,856.
Some would say that the DFE has got off very lightly here and, given their past record, perhaps more stringent sanctions should have been imposed. Two years ago, the ICO criticised the DfE for secretly sharing children’s personal data with the Home Office, triggering fears it could be used for immigration enforcement as part of the government’s hostile environment policy.
Many will question why the public sector merits this special treatment. It is not as if it has been the subject of a disproportionate number of fines. The first fine to a public authority was only issued in December 2021 (more than three and a half years after GDPR came into force) when the Cabinet Office was fined £500,000 for disclosing postal addresses of the 2020 New Year Honours recipients online. This was recently reduced to £50,000 following a negotiated settlement of a pending appeal.
Compare the DfE reprimand with last month’s Monetary Penalty Notice in the sum of £1,350,000 issued to a private company, Easylife Ltd. The catalogue retailer was found to have been using 145,400 customers personal data to predict their medical condition and then, without their consent, targeting them with health-related products. With austerity coming back with a vengeance, no doubt the private sector will question the favourable terms for the public sector.
Perhaps the Government will come to the private sector’s rescue. Following the new DCMS Secretary for State’s speech last month, announcing a plan to replace the UK GDPR with a new “British data protection system” which cuts the “burdens” for British businesses, DCMS officials have said further delays to the Data Protection and Digital Information Bill are on the way. A new public consultation will be launched soon.
So far the EU is not impressed. A key European Union lawmaker has described meetings with the U.K. government over the country’s data protection reform plans as “appalling.” Italian MEP Fulvio Martusciello from the center-right European People’s Party said his impression from the visit was that Britain is “giving in on privacy in exchange for business gain.”
This and other GDPR developments will be discussed in detail on our forthcoming GDPR Update workshop. Are you an experienced GDPR Practitioner wanting to take your skills to the next level? Our Advanced Certificate in GDPR Practice starts on 21st November.
Act Now Training is celebrating 20 years of delivering training and consultancy in Information Governance. To commemorate this, we will be offering various offers over the next month so watch this space.
To kick things off, we are offering 20% off all in-house course bookings made until Christmas this year. These can be scheduled for delivery anytime in the next 12 months.* Act Now’s in-house training services are very popular for those seeking high quality training customised for their organisation. These can be delivered online or at client locations.
Over 100 inhouse training courses were delivered by our team of associates in the past twelve months. These have been delivered online, as well as at client premises. We have delivered training for a range of organisations including local and central government, political parties, the NHS, and the charitable sector. Course titles include:
We have also delivered our very popular certificate courses in GDPR and FOI on an in house basis. The feedback has been very positive with an average Net Promoter Score of 91 for the last twelve months:
“I found the trainer to be both very engaging and interesting and I felt participation was fully encouraged. The conduct of the training was very effective and the trainer made the training and the subject come to life with his engaging and easy manner. He was of course also highly knowledgeable and experienced.”
AB, Isle of Man Government
“Really good training course – I now have a much better understanding of Freedom of Information and Environmental Information Regulations. Tutor was really clear and very knowledgeable in the topic area.”
GS, Environment Agency
“Very knowledgeable trainer pitched at the right level. Interactive elements welcome so officers could discuss real world situations they have encountered making it very practical as well.”
WP, South Ribble Borough Council
Act Now has been providing inhouse training and consultancy services for over 20 years. We pride ourselves on having experienced practitioners in the fields of Data Protection, Surveillance Law, Freedom of Information and Information Management. All have many years of experience of training and advice in this area.
We have trained over 80,000 individuals from different backgrounds. Our strength lies in having a strong client base in all relevant sectors. This means that we are well informed about the most current information management issues in almost every sector. With our education led approach, we are committed to providing measurable training that adds real world value to organisations by promoting and developing participants’ skills, competencies and behaviours.
Feel free to get in touch to discuss your online inhouse training needs. Visit our website for further details. Please quote “20th Anniversary” when enquiring.
*Although scheduled delivery can be anytime in the next 12 months, payment terms will still be as per the usual 30 days from invoice.
This month the UK Information Commissioner’s Office has issued two fines and one Notice of Intent under GDPR.
The latest fine is three times more than that imposed on Easylife Ltd on 5th October. Yesterday, Interserve Group Ltd was fined £4.4 million for failing to keep personal information of its staff secure.
The ICO found that the Berkshire based construction company failed to put appropriate security measures in place to prevent a cyber-attack, which enabled hackers to access the personal data of up to 113,000 employees through a phishing email. The compromised data included personal information such as contact details, national insurance numbers, and bank account details, as well as special category data including ethnic origin, religion, details of any disabilities, sexual orientation, and health information.
The Phishing Email
In March 2020, an Interserve employee forwarded a phishing email, which was not quarantined or blocked by Interserve’s IT system, to another employee who opened it and downloaded its content. This resulted in the installation of malware onto the employee’s workstation.
The company’s anti-virus quarantined the malware and sent an alert, but Interserve failed to thoroughly investigate the suspicious activity. If they had done so, Interserve would have found that the attacker still had access to the company’s systems.
The attacker subsequently compromised 283 systems and 16 accounts, as well as uninstalling the company’s anti-virus solution. Personal data of up to 113,000 current and former employees was encrypted and rendered unavailable.
The ICO investigation found that Interserve failed to follow-up on the original alert of a suspicious activity, used outdated software systems and protocols, and had a lack of adequate staff training and insufficient risk assessments, which ultimately left them vulnerable to a cyber-attack. Consequently, Interserve had breached Article 5 and Article 32 of GDPR by failing to put appropriate technical and organisational measures in place to prevent the unauthorised access of people’s information.
Notice of Intent
Interestingly in this case the Notice of Intent (the pre cursor to the fine) was for also for £4.4million i.e. no reductions were made by the ICO despite Interserve’s representations. Compare this to the ICO’s treatment of two much bigger companies who also suffered cyber security breaches. In July 2018, British Airways was issued with a Notice of Intent in the sum of £183 Million but the actual fine was reduced to £20 million in July 2020. In November 2020 Marriott International Inc was fined £18.4 million, much lower than the £99 million set out in the original notice.
The Information Commissioner, John Edwards, has warned that companies are leaving themselves open to cyber-attack by ignoring crucial measures like updating software and training staff:
“The biggest cyber risk businesses face is not from hackers outside of their company, but from complacency within their company. If your business doesn’t regularly monitor for suspicious activity in its systems and fails to act on warnings, or doesn’t update software and fails to provide training to staff, you can expect a similar fine from my office.
Leaving the door open to cyber attackers is never acceptable, especially when dealing with people’s most sensitive information. This data breach had the potential to cause real harm to Interserve’s staff, as it left them vulnerable to the possibility of identity theft and financial fraud.”
We have been here before. On 10th March the ICO fined Tuckers Solicitors LLP £98,000 following a ransomware attack on the firm’s IT systems in August 2020. The attacker had encrypted 972,191 files, of which 24,712 related to court bundles. 60 of those were exfiltrated by the attacker and released on the dark web.
Action Points
Organisations need to strengthen their defences and have plans in place; not just to prevent a cyber-attack but what to do when it does takes place. Here are our top tips:
This and other GDPR developments will be discussed in detail on our forthcoming GDPR Update workshop.
Are you an experienced GDPR Practitioner wanting to take your skills to the next level? Our Advanced Certificate in GDPR Practice starts on 21st November.
On 3rd October 2022, during the Conservative Party Conference, Michelle Donelan, the new Secretary for State for Digital, Culture, Media and Sport (DCMS), made a speech announcing a plan to replace the UK GDPR with a new “British data protection system”. Just as we are all getting to grips with the (relatively new) UK GDPR, do we want more change and uncertainty? How did we get here? Let’s recap.
In July the Government, led by Boris Johnson (remember him?), published the Data Protection and Digital Information Bill. This was supposed to be the next step in its much publicised plans to reform the UK Data Protection regime following Brexit (remember that?).
In the Government’s response to the September 2021 data protection reform 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 proposed amendments to existing UK data protection legislation in particular the UK GDPR. On further analysis, the bill was more a “tinkering” with GDPR rather than a wholesale change; although the government projected it would yield savings for businesses of £1billion over ten years. (Key provisions of the bill are summarised in our blog post here.)
Following the Bill, we had a new Prime Minister. Nadine Dorries at the DCMS was replaced by Michelle Donelan. The new bill’s passage in Parliament was suspended with a promise to re-introduce it. Now it seems that we could have a new piece of legislation altogether.
The headline of Donelan’s speech was that the Truss Government would replace GDPR with “our own business- and consumer-friendly British data protection system”. She says it will be “co-design[ed] with business …” But the devil is in the detail or lack thereof.
Donelan’s speech also contained the usual compulsory myths about GDPR and tired data protection law cliches (the old ones are the best!). She regurgitated complaints highlighted by Oliver Dowden, when he was at the DCMS:
“We’ve even had churches write to the department, pleading for us to do something, so that they can send newsletters out to their communities without worrying about breaching data rules.”
And plumbers and electricians are also finding GDPR a problem:
“No longer will our businesses be shackled by unnecessary red tape. At the moment, even though we have shortages of electricians and plumbers, GDPR ties them in knots with clunky bureaucracy.”
So that’s why my electrician doesn’t turn up. He is busy drafting a GDPR compliant privacy notice!
Donelan even claimed that “researchers at Oxford University estimated that it has directly caused businesses to lose over 8% of their profits.” This is selective quoting at best. (Andy Crow has done a great post on this.)
Will this “growth” focused reform of UK data protection rules risk the UK’s adequacy status with the EU? It depends on the final text of the law “co-designed” by business. ; )
7th Nov 2022 Update: Today we hear that the EU is not impressed. A key European Union lawmaker has described meetings with the U.K. government over the country’s data protection reform plans as “appalling.” Italian MEP Fulvio Martusciello from the center-right European People’s Party said his impression from the visit was that Britain is “giving in on privacy in exchange for business gain.”
Data protection practitioners should not burn their UK GDPR Handbook just yet! If you have been following the events of the last few days, you might suspect that we may have a new Prime Minister soon and/or a General Election. This will mean that the pause button on data protection reform could be pressed again. To repeat the phrase of the past year, “We live in uncertain times!”
This and other GDPR developments will be discussed in detail on our forthcoming GDPR Update workshop.
Are you an experienced GDPR Practitioner wanting to take your skills to the next level? Our Advanced Certificate in GDPR Practice starts on 21st November.
On 28th September 2022, the Information Commissioner’s Office announced it is taking action against seven organisations for delays in dealing with Subject Access Requests(SARs). This includes government departments, local authorities and a communications company.
The seven organisations were identified following a series of complaints in relation to multiple failures to respond to requests for copies of personal information collected and processed by these organisations, either within statutory timeframes or at all.
An SAR must be responded to within one month, although this period can be extended by a further two months in the case of a manifestly unfounded or excessive request. The time starts from the date of receipt as per a ECJ court ruling and confirmed by the provisions of the forthcoming Data Protection and Digital Information Bill.
But an ICO investigation found the seven organisations, from across the public and private sector, repeatedly failed to meet this legal deadline. This resulted in reprimands under the UK GDPR and, in some cases, Practice Recommendations under the Freedom of Information Act 2000.
Information Commissioner John Edwards told the BBC naming and shaming organisations that fail to comply is a new proactive way for the ICO to work.
“It’s going to become more common – it’s really important that people can have confidence in the administration of their information rights,” he said.
“That’s why we are publicly notifying these organisations that they have to bring themselves into compliance.
“Being able to ask an organisation ‘what information do you hold on me’ and ‘how it is being used’ provides transparency and accountability.
“These are fundamental rights – these are not optional.”
The seven organisations are:
Ministry of Defence (MoD)
The MoD has been issued with a reprimand following an identified SAR backlog dating back to March 2020. Despite setting up a recovery plan, this backlog has continued to grow, and currently stands at 9,000 SAR requests yet to be responded to. This has meant that, on average, people were typically waiting over 12 months for their information.
Home Office
A reprimand has been issued to the Home Office following investigations that showed between March 2021 and November 2021, they had a significant back log of SARs, amounting to just under 21,000 not being responded to during the statutory timeframe. Complaints to the ICO showed requesters suffered significant distress as a result. As of July 2022, there are just over 3,000 unanswered SARs outside of the legal time limit.
London Borough of Croydon
The investigation revealed that from April 2020 to April 2021, the London Borough of Croydon Council had responded to less than half of their SARs within the statutory timescales. This meant that 115 residents did not receive a response in accordance with the UKGDPR. Additionally, since June 2021, the ICO has issued 27 decisions notices under FOIA related to the Council’s failure to respond to information requests. They have been issued with a reprimand as well as a recommendation under our renewed approach to FOI regulation for failure to meet statutory response deadlines.
Kent Police
From October 2020 to February 2021, Kent Police received over 200 SARs, 60% were completed during the statutory deadline. However, some of the remaining SARs are reported to have taken over 18 months to issue a response. As of May 2022, over 200 SARs remain overdue. A reprimand has been issued.
London Borough of Hackney
For the period of April 2020 to February 2021, London Borough of Hackney did not respond to over 60% of the SARs submitted to them in the statutory timeframe. The oldest SAR was over 23 months. They have since been issued with a reprimand as well as a FOI practice recommendation.
London Borough of Lambeth
London Borough of Lambeth has only responded to 74% of the SARs it has received within the statutory timescales from 1 August 2020 to 11 August 2021. This equates to 268 SARs. The council continues to have a backlog of SAR cases and, based on the updated figures, does not appear to be improving. They have been issued with a reprimand.
Virgin Media
Over a 6 month period in 2021, Virgin Media received over 9500 SARs. 14% of these were not responded to during the statutory timeframe. However, their compliance in 2022 has seen improvements. A reprimand has been issued.
These organisations have between three and six months to make improvements or further enforcement action could be taken by the ICO. This action is a reminder that all Data Controllers must have policies and procedures in place to deal with SARs in a timely manner.
Our workshop, How to Handle a Subject Access Request, equips delegates with the skills and knowledge to handle complex SARs. For experienced GDPR Practitioners wanting to take your skills to the next level we have our Advanced Certificate in GDPR Practice which starts on 25th October.
On 5th October, the Information Commissioner’s Office (ICO) issued a GDPR Monetary Penalty Notice in the sum of £1,350,000 to Easylife Ltd. The catalogue retailer was found to have been using 145,400 customers personal data to predict their medical condition and then, without their consent, targeting them with health-related products.
This latest ICO fine is interesting but not because of the amount involved. There have been much higher fines. In October 2020, British Airways was fined £20 million for a cyber security breach which saw the personal and financial details of more than 400,000 customers being accessed by hackers. This, like most of the other ICO fines, involved a breach of the security provisions of GDPR. In the Easylife fine, the ICO focussed on the more interesting GDPR provisions (from a practitioner’s perspective) relating to legal basis, profiling and transparency.
The background to the fine is that a telemarketing company was being investigated by the ICO for promoting funeral plans during the pandemic. This led to the investigation into Easylife because the company was conducting marketing calls for Easylife. The investigation initially concerned potential contraventions of the Privacy and Electronic Communications Regulations (PECR), and that investigation raised concerns of potential contraventions of GDPR, which the Commissioner then investigated separately.
The ICO investigation found that when a customer purchased a product from Easylife’s Health Club catalogue, the company would make assumptions about their medical condition and then market health-related products to them without their consent. For example, if a person bought a jar opener or a dinner tray, Easylife would use that purchase data to assume that person has arthritis and then call them to market glucosamine joint patches.
Special Category Data and Profiling
Article 4( 4) of the GDPR defines profiling:
“‘profiling’ means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements;”
Out of 122 products in Easylife’s Health Club catalogue, 80 were considered to be ‘trigger products’. Once these products were purchased by customers, Easlylife would target them with a health-related item. The ICO found that significant profiling of customers was taking place.
Easylife’s use of customer transactional data to infer that the customer probably had a particular health condition was Special Category Data. Article 6 and 9 of the GDPR provides that such data may not be processed unless a lawfulness condition can be found. The only relevant condition in the context of Easylife’s health campaign was explicit consent. Easylife did not collect consent to process Special Category Data, instead relying on legitimate interest (based on its privacy notice) under Article 6. As a result, it had no lawful basis to process the data in contravention of Article 6 and Article 9 of the GDPR.
Invisible Processing
Furthermore the ICO concluded that ‘invisible’ processing of health data took place. It was ‘invisible’ because Easylife’s customers were unaware that the company was collecting and using their personal data for profiling/marketing purposes. In order to process this data lawfully, Easylife would have had to collect explicit consent from the customers and to update its privacy policy to indicate that Special Category Data was to be processed by consent. Easylife’s omission to do this was a breach of Article 13(1)(c) of the GDPR.
John Edwards, UK Information Commissioner, said:
“Easylife was making assumptions about people’s medical condition based on their purchase history without their knowledge, and then peddled them a health product – that is not allowed.
The invisible use of people’s data meant that people could not understand how their data was being used and, ultimately, were not able to exercise their privacy and data protection rights. The lack of transparency, combined with the intrusive nature of the profiling, has resulted in a serious breach of people’s information rights.”
One other ICO monetary penalty notice has examined these issues in detail. In May 2022 Clearview AI was fined £7,552,800 following an investigation into its online database contains 20 billion images of people’s faces scraped from the internet.
As Jon Baines pointed out (thanks Jon!), on the Jiscmail bulletin board, a large chunk of the online programmatic advertising market also profiles people and infers Special Category Data in the same way as Easylife. This was highlighted in the ICO’s 2019 report. The ICO said in January last year that it was resuming its Adtech investigation, but there has been very little news since then.
GDPR was not the only cause of Easylife’s woes. It was also fined £130,000 under PECR for making 1,345,732 direct marketing calls to people registered with the Telephone Preference Service (TPS).
This case also shows the importance of organisations only using telephone marketing companies who understand and comply with GDPR and PECR. If not, the ICO enforcement spotlight will also fall on clients of such companies.
This and other GDPR developments will be discussed in detail on our forthcoming GDPR Update workshop.
Are you an experienced GDPR Practitioner wanting to take your skills to the next level? Our Advanced Certificate in GDPR Practice starts on 25th October.
On 26 September 2022, TikTok was issued with a Notice of Intent under the GDPR by the Information Commissioner’s Office (ICO). The video-sharing platform faces a £27 million fine after an ICO investigation found that the company may have breached UK data protection law.
The notice sets out the ICO’s provisional view that TikTok breached UK data protection law between May 2018 and July 2020. It found the company may have:
The Information Commissioner, John Edwards said:
“We all want children to be able to learn and experience the digital world, but with proper data privacy protections. Companies providing digital services have a legal duty to put those protections in place, but our provisional view is that TikTok fell short of meeting that requirement.
“I’ve been clear that our work to better protect children online involves working with organisations but will also involve enforcement action where necessary. In addition to this, we are currently looking into how over 50 different online services are conforming with the Children’s code and have six ongoing investigations looking into companies providing digital services who haven’t, in our initial view, taken their responsibilities around child safety seriously enough.”
Rolled out in September last year, the Children’s Code puts in place new data protection standards for online services likely to be accessed by children.
It will be interesting to see if and when this notice becomes an actual fine. If it does it will be the largest fine issued by the ICO. It is also the first potential fine to look at transparency and consent and will provide valuable guidance to Data Controllers especially if it is appealed to the Tribunal.
It is important to note that this is not a fine but ‘notice of intent’ – a legal document that precedes a potential fine. The notice sets out the ICO’s provisional view which may of course change after TikTok makes representations.
Remember we have been here before. In July 2018 British Airways was issued with a Notice of Intent in the sum of £183 Million but the actual fine was for £20 million issued in July 2020. In November 2020Marriott International Inc was fined £18.4 million, much lower than the £99 million set out in the original notice.
This is not the first time TikTok has found itself in hot water of over its data handling practices. In 2019, the company was given a record $5.7m fine by the Federal Trade Commission, for mishandling children’s data. It has also been fined in South Korea for similar reasons.
Are you an experienced GDPR Practitioner wanting to take your skills to the next level? Our Advanced Certificate in GDPR Practice starts on 25th October.
