On 8th March 2023, the UK Department for Science, Information and Technology (DSIT) published the Data Protection and Digital Information (No.2) Bill (“the new Bill”). If enacted, it will make changes to the UK GDPR, the Data Protection Act 2018 and Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”).
According to the DSIT press release, the Bill will result in a “new common-sense-led UK version of the EU’s GDPR [and will] will reduce costs and burdens for British businesses and charities, remove barriers to international trade and cut the number of repetitive data collection pop-ups online.” It also claims that the reforms are “expected to unlock £4.7 billion in savings for the UK economy over the next 10 years.” How this figure has been calculated is not explained but we have been here before! Remember the red bus?
How did we get here?
This is the second version of a bill designed to reform the UK data protection regime. In July 2022, the Government published the Data Protection and Digital Information Bill (“the previous Bill”). This was paused in September 2022 so ministers could engage in “a co-design process with business leaders and data experts” and move away from the “one-size-fits-all’ approach of European Union’s GDPR.” On 3rd October 2022, during the Conservative Party Conference, Michelle Donelan, then 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”. Another full consultation round was expected but never materialised.
The previous Bill have now been withdrawn. We will provide analysis and updates on the new Bill, as it progresses through Parliament, over the coming months. An initial summary of the key proposals, both old and new, is set out below:
What remains the same from the original bill?
Many of the proposals in the new Bill are the same as contained in the previous Bill. For a detailed analysis please read our previous blog post. Here is a summary:
- Amended Definition of Personal Data: 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.
- Vexatious Data Subject Requests: The terms “manifestly unfounded” or “excessive” requests, in Article 12 of the UK GDPR, will be replaced with “vexatious” or “excessive” requests. Explanation and examples of such requests will also be included.
- Data Subject Complaints: Data Controllers will be required to acknowledge receipt of Data Subject complaints within 30 days and respond substantively “without undue delay”. The ICO will be entitled not to accept a complaint, if a Data Subject has not made a complaint to the controller first.
- Data Protection Officer: The obligation for some controllers and processors to appoint a Data Protection Officer (DPO) will be removed. However, public bodies and those who carry out processing likely to result in a “high risk” to individuals will be required to designate a senior manager as a “Senior Responsible Individual”.
- Data Protection Impact Assessments: These will be replaced by leaner and less prescriptive “Assessments of High Risk Processing”.
- International Transfers: There will be a new approach to the test for adequacy applied by the UK Government to countries (and international organisations) and when Data Controllers are carrying out a Transfer Impact Assessment or TIA. The threshold for this new “data protection test” will be whether a jurisdiction offers protection that is “not materially lower” than under the UK GDPR. (For more detail see also our forthcoming International Transfers webinar).
- The Information Commission: The Information Commissioner’s Office will transform into the Information Commission; a corporate body with a chief executive.
- Business Data: The Secretary of State and the Treasury will be given 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.
- PECR: Cookies will be allowed to be used without consent for the purposes of web analytics and to install automatic software updates. Furthermore non-commercial organisations (e.g. charities and political parties) will be able to rely on the “soft opt-in” for direct marketing purposes, if they have obtained contact details from an individual expressing interest. Finally, there will be an increase to the fines 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).
What has changed?
The new Bill does not make any radical changes to the previous Bill; rather it clarifies some points and provides a bit more flexibility in other areas. The main changes are summarised below:
- Scientific Research: The definition of scientific research is amended so that it now includes research for the purposes of commercial activity.
This expands the circumstances in which processing for research purposes may be undertaken, providing a broader consent mechanism and exemption to the fair processing requirement.
- Legitimate Interests: The previous Bill proposed that businesses could rely on legitimate interests (Article 6 lawful basis) without the requirement to conduct a balancing test against the rights and freedoms of data subjects where those legitimate interests are “recognised”. These “recognised” legitimate interests cover purposes for processing such as national security, public security, defence, emergencies, preventing crime, safeguarding and democratic engagement. The new Bill, whilst keeping the above changes, introduces a non-exhaustive list of cases where organisations may rely on the “legitimate interests” legal basis, including for the purposes of direct marketing, transferring data within the organisation for administrative purposes and for the purposes of ensuring the security of network and information systems; although a balancing exercise still needs to be conducted in these cases.
- Automated Decision Making: The previous Bill clarified that its proposed restrictions on automated decision-making under Article 22 UK GDPR should only apply to decisions that are a result of automated processing without “meaningful human involvement”. The new Bill states that profiling will be a relevant factor in the assessment as to whether there has been meaningful human involvement in a decision.
- Records of Processing Activities (ROPA): The previous Bill streamlined the required content of ROPAs. The new Bill exempts all controllers and processors from the duty to maintain a ROPA unless they are carrying out high risk processing activities.
The EU conducts a review of adequacy with the UK every four years; the next adequacy decision is due on 27th June 2025. Some commentators have suggested that the changes may jeopardise the UK’s adequate status and so impact the free flow of data between the UK and EU. We disagree. Although the Government states that the new Bill is “a new system of data protection”, it still retains the UK GDPR’s structure and fundamental obligations. Some tinkering around the edges is not really going to have much of an impact (see the helpful redline version of the new Bill produced by the good people at Hogen Lovells). Organisations that are already compliant with the UK GDPR will not be required to make any major changes to their systems and processes.
The new Bill has been introduced at the first reading stage. The second reading, due to be scheduled within the next few weeks, which will be the first time the Government’s data protection reforms will be debated in Parliament. We expect the Bill to be passed in a form similar to the one now published and come into force later this year.