Category: Enforcement

GDPR Fine for Charity E Mail Blunder

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. 

HIV Scotland was also criticised for not having a specific policy on the secure handling of personal data within the organisation. It relied on its privacy policy which was a public facing statement covering points such as cookie use, and data subject access rights; this provided no guidance to staff on the handling of personal and what they must do to ensure that it is kept secure. The Commissioner expects an organisation handling personal data, to maintain policies regarding, amongst other things, confidentiality (see our GDPR policy pack).

This is an interesting case and one which will not give reassurance to the 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. 

This and other GDPR developments will be discussed in detail on our forthcoming GDPR Update workshop. We have a few places left on our Advanced Certificate in GDPR Practice course starting in January.

Data Protection Officers and Conflicts of Interest

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In May 2018, with the implementation of GDPR, some senior managers (and many junior ones) found themselves thrown into the then unknown statutory role of Data Protection Officer (“DPO”). Two years on, some now have a better understanding of their role whilst others are still battling to manage the many different requirements of the job.

Articles 38 and 39 of the GDPR outline the role of the DPO. They should, amongst other things, be:

  • involved in data breach discussions and investigations whilst being provided with adequate resource to fulfil their obligations;
  • not dismissed for the performance of their duties as DPO;
  • able to offer secrecy and confidentiality to data subjects in relation to data protection matters within the organisation; and
  • actively involved and consulted on the data processing risks associated to proposed data processing activities within the organisation, which are usually highlighted within the Data Protection Impact Assessment (DPIA).

The law is still in its infancy, and remains largely untested in the courts, but a recent case may lead to a few DPOs feeling a little nervous about their role.

€50,000 Fine

The Belgian Data Protection Authority recently issued a €50,000 fine to an organisation after it ruled that the organisation’s DPO had a conflict of interest under Article 38(6) of GDPR. The DPO had been employed by the organisation as the Head of Compliance, Risk Management and Audit in addition to acting as DPO.

A reportable data breach lead to an investigation by the Belgian regulator who sought to dig a little deeper into the organisation’s general approach to privacy compliance.
The investigation focussed on three main potential infringements of GDPR namely:

  1. The duty to cooperate with the data protection authority
  2. The accountability obligations of the organisation in relation to data breach notifications and data protection risk assessments
  3. The requirements related to the position of the DPO

The investigation found that the organisation’s DPO appointment failed to meet the requirements of the legislation as the individual was responsible for the processing of personal data in the areas of compliance, risk and audit and therefore could not independently advise on such matters.

Many data protection experts have interpreted this ruling as preventing any employee who is a “head of department” from carrying out the DPO rule without a conflict of interest, although the situation is not as clear cut.

Conflict of Interests

Whilst the employer will pay their salary, the DPO must be able to act independently and without fear or favour. The Article 29 Working Party’s Guidelines on DPO’s makes reference to a number of roles which would be considered to pose a conflict of interests with the position of DPO namely; Chief Executive, Chief Operating Officer, Chief Financial Officer, Chief Medical Officer, Head of Marketing, Head of HR and Head of IT.
All of these roles involve a significant amount of personal data processing and decision making, resulting in an impossible independent standpoint to be taken on data matters arising as a result.

This ruling presents an opportunity for organisations to review their DPO position.
Both the organisation and the individual must be clear about the role. The job description should be reviewed from time to time in the light of changing roles and responsibilities. This may flag up potential conflicts of interest.

It is common for DPOs, especially in the public sector, to wear many “hats” due to budget constraints. Whilst GDPR does allow this, if there is any doubt about a conflict of interests, the decision-making process should be documented and the position reviewed.
If any mitigating measures are to be put in place to reduce the risk of conflict these should be outlined and reviewed periodically as new risks and processing activities are presented to the organisation.

Data protection and privacy is an ever-changing area of compliance and in the coming years, more case law will be generated as the principles of the legislation are put to the test. With the end of the Brexit transition period approaching and changing uses of technology due to the global coronavirus pandemic, organisations will need to remain alert to potential issues arising from their original GDPR implementation plan.

Samantha Smith is a Data Protection Manager and qualified Solicitor with experience of data protection compliance projects across both public and private sectors. This and other GDPR developments will be covered in our new online GDPR update workshop. Our next online  GDPR Practitioner Certificate course is  fully booked. A few places are left  on the course starting in August.

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