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:
processed the data of children under the age of 13 without appropriate parental consent,
failed to provide proper information to its users in a concise, transparent and easily understood way, and
processed special category data, without legal grounds to do so.
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.
Cyber security breaches are on the rise. Virtually every day there is a news story about a high profile organisation being hacked and personal data being lost or stolen. Last week the BBC reported that thousands, if not millions, of people could have lost money in the second largest crypto hack in history. Ronin Network, a key platform powering the popular mobile game Axie Infinity, has had $615m (£467m) stolen. More recently UK retailer, The Works has been forced to shut shops temporarily and suspend new stock deliveries after a cyber-attack.
And it’s not just the private sector. In January we learnt that Gloucester City Council’s website was hacked affecting online revenue and benefits, planning and customer services. The work of Russian hackers(allegedly) could take up to six months to resolve and affected servers and systems may need to be rebuilt.
Data Protection Officers need to be aware of the latest incidents and advice when it comes to cyber security breaches. The recently published DCMS Cyber Security Breaches Survey is important reading for all DPOs. It explores the policies, processes, and approaches to cyber security for businesses, charities, and educational institutions. It also considers the different forms of cyber-attack these organisations face, as well as how they are impacted and their response.
The survey results show that in the last 12 months, 39% of UK businesses identified a cyber-attack. Of these, the most common threat vector was phishing attempts (83%). Of the 39%, around one in five (21%) identified a more sophisticated attack type such as a denial of service, malware, or ransomware attack. Despite its low prevalence, organisations cited ransomware as a major threat, with 56% of businesses having a policy not to pay ransoms. Note recently the GDPR fine issued to a firm of solicitors who suffered such an attack. Interestingly they too chose not to pay the hackers.
Frequency and Impact
Within the group of organisations reporting cyber-attacks, 31% of businesses and 26% of charities estimate they were attacked at least once a week. One in five businesses (20%) and charities (19%) say they experienced a negative outcome as a direct consequence of a cyber-attack, while one third of businesses (35%) and almost four in ten charities (38%) experienced at least one negative impact. It is interesting that the survey focussed on charities too. July 2021 saw the first GDPR fine to a charity. The transgender charity Mermaids was fined £25,000 after the ICO found that it had 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.
Cost of Attacks
The survey found the average estimated cost of all cyber attacks in the last 12 months was £4,200. Considering only medium and large businesses; the figure rises to £19,400. Of course such incidents also mean a loss of reputation and customer trust. In October 2020, the ICO fined British Airways £20million for a cyber security breach which saw the personal and financial details of more than 400,000 customers being accessed by hackers. British Airways also had to settle legal claims for compensation from affected customers.
The government guidance ‘10 Steps to Cyber Security’ breaks down the task of protecting an organisation into 10 key components. The survey finds 49% of businesses and 40% of charities have acted in at least five of these 10 areas. In particular, access management surveyed most favourably, while supply chain security was the least favourable.
Around four in five (82%) of boards or senior management within UK businesses rate cyber security as a ‘very high’ or ‘fairly high’ priority, an increase on 77% in 2021. 72% in charities rate cyber security as a ‘very high’ or ‘fairly high’ priority. Additionally, 50% of businesses and 42% of charities say they update the board on cyber security matters at least quarterly. Our new webinar “GDPR and the Charity Sector Webinar” is ideal for raising awareness amongst charity trustees.
Larger organisations are correlated throughout the survey with enhanced cyber security, likely as a consequence of increased funding and expertise. For large businesses’ cyber security; 80% update the board at least quarterly, 63% conducted a risk assessment, and 61% carried out staff training; compared with 50%, 33% and 17% respectively for all businesses. Our GDPR Essentials e learning course contains a specific module on keeping data safe which warns of the most common cyber hacking/phishing tactics.
Just over half of businesses surveyed (54%) have acted in the past 12 months to identify cyber security risks, including a range of actions, where security monitoring tools (35%) were the most common. Qualitative interviews however found that limited board understanding meant the risk was often passed on to; outsourced cyber providers, insurance companies, or an internal cyber colleague.
Outsourcing and Supply Chain
Small, medium, and large businesses outsource their IT and cyber security to an external supplier 58%, 55%, and 60% of the time respectively, with organisations citing access to greater expertise, resources, and standard for cyber security. Consequently, only 13% of businesses assessed the risks posed by their immediate suppliers, with organisations saying that cyber security was not an important factor in the procurement process.
Incident management policy is limited with only 19% of businesses having a formal incident response plan, while 39% have assigned roles should an incident occur. In contrast, businesses show a clear reactive approach when breaches occur, with 84% of businesses saying they would inform the board, while 73% would make an assessment of the attack.
Outside of working with external cyber security providers, organisations most keenly engage with insurers, where 43% of businesses have an insurance policy that cover cyber risks. On the other hand, only 6% of businesses have the Cyber Essentials certification and 1% have Cyber Essentials plus, which is largely due to relatively low awareness. The importance of this was highlighted in the recent GDPR fine issued to Tuckers solicitors.
The DCMS Cyber Security Breaches Survey is important reading for all Data Protection Officers and IT staff. Aligning with the National Cyber Strategy, it is used to inform government policy on cyber security. It should also be used to stay abreast of cyber security developments and formulate your own organisation’s cyber security strategy.
Our Managing Personal Data Breaches workshop will examine the law and best practice in this area, drawing on real-life case studies, to identify how organisations can position themselves to deal appropriately with data security incidents and data breaches, in order to minimise the impact on customers and service users and mitigate reputational damage.
On 10th March the Information Commissioner’s Office (ICO) announced that it had fined Tuckers Solicitors LLP £98,000 for a breach of GDPR.
The fine follows 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. Some of the files included Special Category Data. Clearly this was a personal data breach, not just for the fact that data was released on the dark web, but because of the unavailability of personal data (though encryption by the attacker) which is also cover by the definition in Article 4 GDPR. Tuckers reported the breach to the ICO as well as affected individuals through various means including social media.
The ICO found that between 25th May 2018 (the date the GDPR came into force) and 25th August 2020 (the date on which the Tuckers reported the personal data breach), Tuckers had contravened Article 5(1)(f) of the GDPR (the sixth Data Protection Principle, Security) as it failed to process personal data in a manner that ensured appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures. The ICO found its starting point for calculating the breach to be 3.25 per cent of Tuckers’ turnover for 30 June 2020. It could have been worse; the maximum for a breach of the Data Protection Principles is 4% of gross annual turnover.
In reaching its conclusions, the Commissioner gave consideration to Article 32 GDPR, which requires a Data Controller, when implementing appropriate security measures, to consider:
“…the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons”.
What does “state of the art” mean? In this case the ICO considered, in the context of “state of the art”, relevant industry standards of good practice including the ISO27000 series, the National Institutes of Standards and Technology (“NIST”), the various guidance from the ICO itself, the National Cyber Security Centre (“NCSC”), the Solicitors Regulatory Authority, Lexcel and NCSC Cyber Essentials.
The ICO concluded that there are a number of areas in which Tuckers had failed to comply with, and to demonstrate that it complied, with the Security Principle. Their technical and organisational measures were, over the relevant period, inadequate in the following respects:
Lack of Multi-Factor Authentication (“MFA”)
MFA is an authentication method that requires the user to provide two or more verification factors to gain access to an online resource. Rather than just asking for a username and password, MFA requires one or more additional verification factors, which decreases the likelihood of a successful cyber-attack e.g. a code from a fob or text message. Tuckers had not used MFA on its remote access solution despite its own GDPR policy requiring it to be used where available.
Tuckers told the ICO that part of the reason for the attack was the late application of a software patch to fix a vulnerability. In January 2020 this patch was rated as “critical” by the NCSC and others. However Tuckers only installed it 4 months later.
Failure to Encrypt Personal data
The personal data stored on the archive server, that was subject to this attack, had not been encrypted. The ICO accepted that encryption may not have prevented the ransomware attack. However, it would have mitigated some of the risks the attack posed to the affected data subjects especially given the sensitive nature of the data.
Ransomware is on the rise. 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:
Conduct a cyber security risk assessment and consider an external accreditation through Cyber Essentials. The ICO noted that in October 2019, Tuckers was assessed against the Cyber Essentials criteria and found to have failed to meet crucial aspects. The fact that some 10 months later it had still not resolved this issue was, in the Commissioner’s view, sufficient to constitute a negligent approach to data security obligations.
Making sure everyone in your organisation knows the risks of malware/ransomware and follows good security practice. Our GDPR Essentials e learning solution contains a module on keeping data safe.
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.)
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.
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.
The first GDPR fine issued by the Information Commissioner’s Office (ICO) has been reduced by two thirds on appeal.
In December 2019, Doorstep Dispensaree Ltd, a company which supplies medicines to customers and care homes, was the subject of a Monetary Penalty Notice of £275,000 for failing to ensure the security of Special Category Data. Following an investigation, the ICO ruled that the company had left approximately 500,000 documents in unlocked containers at the back of its premises in Edgware. The ICO launched its investigation after it was alerted by the Medicines and Healthcare Products Regulatory Agency, which was carrying out its own separate enquiry into the company.
The unsecured documents included names, addresses, dates of birth, NHS numbers, medical information and prescriptions belonging to an unknown number of people. The ICO held that this gave rise to infringements of GDPR’s security and data retention obligations. It also issued an Enforcement Notice after finding, amongst other things, that the company’s privacy notices and internal policies were not up to scratch.
On appeal, the First Tier Tribunal (Information Rights) ruled that the original fine of £275,000 should be reduced to £92,000. It concluded that 73,719 documents had been seized by the MHRA, and not approximately 500,000 as the ICO had estimated. She also held that 12,491 of those documents contained personal data and 53,871 contained Special Category Data.
A key learning point from this appeal is that data controllers cannot be absolved of responsibility for personal data simply because data processors breach contractual terms around security. The company argued that, by virtue of Article 28(1) of GDPR, its data destruction company (JPL) had become the data controller of the offending data because it was processing the data otherwise than in accordance with their instructions. In support of this argument it relied on its contractual arrangement with JPL, under which JPL was only authorised to destroy personal data in relation to DDL- sourced excess medication and equipment and must do so securely and in good time.
The judge said:
“The issue of whether a processor arrogated the role of controller in this context must be considered by reference to the Article 5(2) accountability principle. This provides the controller with retained responsibility for ensuring compliance with the Article 5(1) data processing principles, including through the provision of comprehensive data processing policies. Although it is possible that a tipping point may be reached whereby the processor’s departure from the agreed policies becomes an arrogation of the controller’s role, I am satisfied that this does not apply to the facts of this case.”
This case shows the importance of data controllers keeping a close eye on data processors especially where they have access to or are required to destroy or store sensitive data. Merely relying on the data processor contract is not enough to avoid ICO enforcement.
So much has happened in the world of data protection recently. Where to start?
In April, the European Data Protection Board’s (EDPB) opinions (GDPR and Law Enforcement Directive (LED)) on UK adequacy were adopted. The EDPB has looked at the draft EU adequacy decisions. It acknowledge that there is alignment between the EU and UK laws but also expressed some concerns. It has though issued a non-binding opinion recommending their acceptance. If accepted the two adequacy decisions will run for an initial period of four years. More here.
Last month saw the ICO’s annual data protection conference go online due to the pandemic. Whilst not the same as a face to face conference, it was still a good event with lots of nuggets for data protection professionals including the news that the ICO is working on bespoke UK standard contractual clauses (SCCs) for international data transfers. Deputy Commissioner Steve Wood said:
“I think we recognise that standard contractual clauses are one of the most heavily used transfer tools in the UK GDPR. We’ve always sought to help organisations use them effectively with our guidance. The ICO is working on bespoke UK standard clauses for international transfers, and we intend to go out for consultation on those in the summer. We’re also considering the value to the UK for us to recognise transfer tools from other countries, so standard data transfer agreements, so that would include the EU’s standard contractual clauses as well.”
Lloyd v Google
The much-anticipated Supreme Court hearing in the case of Lloyd v Google LLC took place at the end of April. The case concerns the legality of Google’s collection and use of browser generated data from more than 4 million+ iPhone users during 2011-12 without their consent. Following the two-day hearing, the Supreme Court will now decide, amongst other things, whether, under the DPA 1998, damages are recoverable for ‘loss of control’ of data without needing to identify any specific financial loss and whether a claimant can bring a representative action on behalf of a group on the basis that the group have the ‘same interest’ in the claim and are identifiable. The decision is likely to have wide ranging implications for representative actions, what damages can be awarded for and the level of damages in data protection cases. Watch this space!
In November 2020, the ICO fined Ticketmaster £1.25m for a breach of Articles 5(1)(f) and 32 GPDR (security). Ticketmaster appealed the penalty notice on the basis that there had been no breach of the GDPR; alternatively that it was inappropriate to impose a penalty, and that in any event the sum was excessive. The appeal has now been stayed by the First-Tier Tribunal until 28 days after the pending judgment in a damages claim brought against Ticketmaster by 795 customers: Collins & Others v Ticketmaster UK Ltd (BL-2019-LIV-000007).
Age Appropriate Design Code
This code came into force on 2 September 2020, with a 12 month transition period. The Code sets out 15 standards organisations must meet to ensure that children’s data is protected online. It applies to all the major online services used by children in the UK and includes measures such as providing default settings which ensure that children have the best possible access to online services whilst minimising data collection and use.
With less than four months to go (2 September 2021) the ICO is urging organisations and businesses to make the necessary changes to their online services and products. We are planning a webinar on the code. Get in touch if interested.
AI and Automated Decision Making
Article 22 of GDPR provides protection for individuals against purely automated decisions with a legal or significant impact. In February, the Court of Amsterdam ordered Uber, the ride-hailing app, to reinstate six drivers who it was claimed were unfairly dismissed “by algorithmic means.” The court also ordered Uber to pay the compensation to the sacked drivers.
In April EU Commission published a proposal for a harmonised framework on AI. The framework seeks to impose obligations on both providers and users of AI. Like the GDPR the proposal includes fine levels and an extra-territorial effect. (Readers may be interested in our new webinar on AI and Machine Learning.)
Publicly Available Information
Just because information is publicly available it does not provide a free pass for companies to use it without consequences. Data protection laws have to be complied with. In November 2020, the ICO ordered the credit reference agency Experian Limited to make fundamental changes to how it handles personal data within its direct marketing services. The ICO found that significant ‘invisible’ processing took place, likely affecting millions of adults in the UK. It is ‘invisible’ because the individual is not aware that the organisation is collecting and using their personal data. Experian has lodged an appeal against the Enforcement Notice.
Interesting that recently the Spanish regulator has fined another credit reference agency, Equifax, €1m for several failures under the GDPR. Individuals complained about Equifax’s use of their personal data which was publicly available. Equifax had also failed to provide the individuals with a privacy notice.
Data Protection by Design
The Irish data protection regulator issued its largest domestic fine recently. Irish Credit Bureau (ICB) was fined €90,000 following a change in the ICB’s computer code in 2018 resulted in 15,000 accounts having incorrect details recorded about their loans before the mistake was noticed. Amongst other things, the decision found that the ICB infringed Article 25(1) of the GDPR by failing to implement appropriate technical and organisational measures designed to implement the principle of accuracy in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of the GDPR and protect the rights of data subjects (aka DP by design and by default).
The ICO’s Data Sharing Code of Practice provides organisations with a practical guide on how to share personal data in line with data protection law. Building on the code, the ICO recently outlined its plans to update its guidance on anonymisation and pseudonymisation, and to explore the role that privacy enhancing technologies might play in enabling safe and lawful data sharing.
UK GDPR Handbook
The UK GDPR Handbook is proving very popular among data protection professionals.
It sets out the full text of the UK GDPR laid out in a clear and easy to read format. It cross references the EU GDPR recitals, which also now form part of the UK GDPR, allowing for a more logical reading. The handbook uses a unique colour coding system that allows users to easily identify amendments, insertions and deletions from the EU GDPR. Relevant provisions of the amended DPA 2018 have been included where they supplement the UK GDPR. To assist users in interpreting the legislation, guidance from the Information Commissioner’s Office, Article 29 Working Party and the European Data Protection Board is also signposted. Read what others have said:
“A very useful, timely, and professional handbook. Highly recommended.”
“What I’m liking so far is that this is “just” the text (beautifully collated together and cross-referenced Articles / Recital etc.), rather than a pundits interpretation of it (useful as those interpretations are on many occasions in other books).”
“Great resource, love the tabs. Logical and easy to follow.”
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:
Assess the risks of using a chat-bot on its payment page
Identify and implement appropriate security measures to negate the risks
Identify the source of suggested fraudulent activity in a timely manner
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.
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.
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.
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.