Category: Fines

Mega GDPR Fines for Meta

On 4th January 2023, Ireland’s Data Protection Commission (DPC) announced the conclusion of two inquiries into the data processing operations of Meta Platforms Ireland Limited (“Meta Ireland”) in connection with the delivery of its Facebook and Instagram services. Not only does this decision significantly limit Meta’s ability to gather information from its users to tailor and sell advertising, it also provides useful insight into EU regulators’ view about how to comply with Principle 1 of GDPR i.e. the need to ensure personal data is “processed lawfully, fairly and in a transparent manner in relation to the data subject”(Article 5).

In decisions dated 31st December 2022, the DPC fined Meta Ireland €210 million and €180 million, relating to its Facebook and Instagram services respectively. The fines were imposed in connection with the company’s practise of monetising users’ personal data by running personalised adverts on their social media accounts. Information about a social media user’s digital footprint, such as what videos prompt them to stop scrolling or what types of links they click on, is used by marketers to get personalised adverts in front of people who are the most likely to buy their products. This practice helped Meta generate $118 billion in revenue in 2021.

The DPC’s decision was the result of two complaints from Facebook and Instagram users, supported by privacy campaign group NOYB, both of which raised the same basic issue: how Meta obtains legal permission from users to collect and use their personal data for personalised advertising. Article 6(1) of GDPR states that:

“Processing shall be lawful only if and to the extent that at least one of the following applies:

  1. the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
  • processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;”

In advance of the GDPR coming into force on 25th May 2018, Meta Ireland changed the Terms of Service for its Facebook and Instagram services. It also flagged the fact that it was changing the legal basis upon which it relies to process users’ personal data under Article 6 in the context of the delivery of the Facebook’s and Instagram’s services (including behavioural advertising). Having previously relied on the consent of users to the processing of their personal data, the company now sought to rely on the “contract” legal basis for most (but not all) of its processing operations. Existing and new users were required to click “I accept” to indicate their acceptance of the updated Terms of Service in order to continue using Facebook and Instagram. The services would not be accessible if users declined to do so.

Meta Ireland considered that, on accepting the updated Terms of Service, a contract was concluded between itself and the user. Consequently the processing of the user’s personal data in connection with the delivery of its Facebook and Instagram services was necessary for the performance of this “contract” which includes the provision of personalised services and behavioural advertising.  This, it claimed, provided a lawful basis by reference to Article 6(1)(b) of the GDPR.

The complainants contended that Meta Ireland was in fact still looking to rely on consent to provide a lawful basis for its processing of users’ data. They argued that, by making the accessibility of its services conditional on users accepting the updated Terms of Service, Meta Ireland was in fact “forcing” them to consent to the processing of their personal data for behavioural advertising and other personalised services. This was not real consent as defined in Article 4 of GDPR:

“any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her;” (our emphasis)

Following comprehensive investigations, consultation with other EU DP regulators (a process required by GDPR in such cases) and final rulings by the European Data Protection Board, the DPC made a number of findings; notably:

1. Meta Ireland did not provide clear information about its processing of users’ personal data, resulting in users having insufficient clarity as to what processing operations were being carried out on their personal data, for what purpose(s), and by reference to which of the six legal bases identified in Article 6. The DPC said this violated Articles 12 (transparency) and 13(1)(c) (information to be provide to the data subject) of GDPR. It also considered it to be a violation of Article 5(1)(a), which states that personal data must be processed lawfully, fairly and transparently.

2. Meta Ireland cannot rely on the contract legal basis for justifying its processing. The delivery of personalised advertising (as part of the broader suite of personalised services offered as part of the Facebook and Instagram services) could not be said to be necessary to perform the core elements of what was said to be a much more limited form of contract. The DPC adopted this position following a ruling by the EDPB, which agreed with other EU regulators’ representations to the DPC.

In addition to the fines, Meta Ireland has been directed to ensure its data processing operations comply with GDPR within a period of 3 months. It has said it will appeal; not surprising considering the decision has the potential to require it to make costly changes to its personalised advertising-based business in the European Union, one of its largest markets. 

It is important to note that this decision still allows Meta to use non-personal data (such as the content of a story) to personalise adverts or to ask users to give their consent to targeted adverts. However under GDPR users should be able to withdraw their consent at any time.  If a large number do so, it would impact one of the most valuable parts of Meta’s business. 

The forthcoming appeals by Meta will provide much needed judicial guidance on the GDPR particular Principle 1. Given the social media giant’s deep pockets, expect this one to run and run.

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.

£4.4 Million GDPR Fine for Construction Company 

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: 

  1. Conduct a cyber security risk assessment and consider an external accreditation through  Cyber Essentials. 
  1. Ensure your employees know the risks of malware/ransomware and follows good security practice. At the time of the cyber-attack, one of the two Interserve employees who received the phishing email had not undertaken data protection training. (Our GDPR Essentials  e-learning solution is a very cost effective e learning solution which contains a specific module on keeping data safe.)  
  1. Have plans in place for a cyber security breach. See our Managing Personal Data Breaches workshop.  
  1. Earlier in the year, the ICO worked with NCSC to remind organisations not to pay a ransom in case of a cyber-attack, as it does not reduce the risk to individuals and is not considered as a reasonable step to safeguard data. For more information, take a look at the ICO ransomware guidance or visit the NCSC website to learn about mitigating a ransomware threat via their business toolkit. 

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.  

£1.35 Million GDPR Fine for Catalogue Retailer

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. 

TikTok Faces a £27 Million GDPR Fine

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.

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. 

A New GDPR Fine and a New ICO Enforcement Approach

Since May 25th 2018, the Information Commissioner’s Office (ICO) has issued ten GDPR fines. The latest was issued on 30th June 2022 to Tavistock and Portman NHS Foundation Trust for £78,400. The Trust had accidentally revealing 1,781 adult gender identity patients’ email addresses when sending out an email.

This is the second ICO fine issued to a Data Controller in these circumstances. In 2021, HIV Scotland was fined £10,000 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 latest fine was issued to Tavistock and Portman NHS Foundation Trust following an e mail sent in early September 2019. The Trust intended to run a competition inviting patients of the adult Gender Identity Clinic to provide artwork to decorate a refurbished clinic building. It sent two identical emails promoting the competition (one to 912 recipients, and the second to 869 recipients) before realising they had not Bcc’d the addresses.

It was clear from the content of the email that all the recipients were patients of the clinic, and there was a risk further personal details could be found by researching the email addresses. The Trust immediately realised the error and tried, unsuccessfully, to recall the emails. It wrote to all the recipients to apologise and informed the ICO later that day.

The ICO investigation found:

  • Two similar, smaller incidents had affected a different department of the same Trust in 2017. While that department had strengthened their processes as a result, the learning and changes were not implemented across the whole Trust.
  • The Trust was overly reliant on people following policy to prevent bulk emails using ‘to’ in Outlook. There were no technical or organisational safeguards in place to prevent or mitigate against this very predictable human error. The Trust has since procured specialist bulk email software and set “a maximum ‘To’ recipient” rule on the email server.

The ICO reduced the fine issued to the Trust from £784,800 to £78,400 to reflect the ICO’s new approach to working more effectively with public authorities. This approach, which will be trialled over the next two years, was outlined in an open letter from the UK Information Commissioner John Edwards to public authorities. It will see more use of the Commissioner’s discretion to reduce the impact of fines on the public sector, coupled with better engagement including publicising lessons learned and sharing good practice. 

In practice, the new approach will mean an increased use of the ICO’s wider powers, including warnings, reprimands and enforcement notices, with fines only issued in the most serious cases. When a fine is considered, the decision notice will give an indication on the amount of the fine the case would have attracted. This will provide information to the wider economy about the levels of penalty others can expect from similar conduct. Additionally, the ICO will be working more closely with the public sector to encourage compliance with data protection law and prevent harms before they happen.

The ICO followed its new approach recently 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 service remedied the error within a week, and none of the patients involved experienced any harm as a result. The ICO says that, if the revised enforcement approach had not been in place, the service would have received a fine of £749,856. 

The new approach will be welcome news to the public sector at a time of pressure on budgets. However some have questioned 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. Perhaps the ICO is already thinking about the reform of its role following the DCMS’s response to last year’s GDPR consultation. It will be interesting to see if others, particularly the charity sector, lobby for similar treatment. 

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 September.

ICO Fines “World’s Largest Facial Network”

The Information Commissioner’s Office has issued a Monetary Penalty Notice of £7,552,800 to Clearview AI Inc for breaches of the UK GDPR. 

Clearview is a US based company which describes itself as the “World’s Largest Facial Network”. It allows customers, including the police, to upload an image of a person to its app, which is then checked against all the images in the Clearview database. The app then provides a list of matching images with a link to the websites from where they came from. 

Clearview’s online database contains 20 billion images of people’s faces and data scraped from publicly available information on the internet and social media platforms all over the world. This service was used on a free trial basis by a number of UK law enforcement agencies. The trial was discontinued and the service is no longer being offered in the UK. However Clearview has customers in other countries, so the ICO ruled that is still processing the personal data of UK residents.

The ICO was of the view that, given the high number of UK internet and social media users, Clearview’s database is likely to include a substantial amount of data from UK residents, which has been gathered without their knowledge. It found the company had breached the UK GDPR by:

  • failing to use the information of people in the UK in a way that is fair and transparent, given that individuals are not made aware or would not reasonably expect their personal data to be used in this way;
  • failing to have a lawful reason for collecting people’s information;
  • failing to have a process in place to stop the data being retained indefinitely;
  • failing to meet the higher data protection standards required for biometric data (Special Category Data):
  • asking for additional personal information, including photos, when asked by members of the public if they are on their database. This may have acted as a disincentive to individuals who wish to object to their data being collected and used.

The ICO has also issued an enforcement notice ordering Clearview to stop obtaining and using the personal data of UK residents that is publicly available on the internet, and to delete the data of UK residents from its systems.

The precise legal basis for the ICO’s fine will only be known when (hopefully not if) it decides to publish the Monetary Penalty Notice. The information we have so far suggests that it considered breaches of Article 5 (1st and 5th Principles – lawfulness, transparency and data retention) Article 9 (Special Category Data) and Article 14 (privacy notice) amongst others.  (UPDATE – the notice has now been published here)

Whilst substantially lower than the £17 million Notice of Intent, issued in November 2021, this fine shows that the new Information Commissioner, John Edwards, is willing to take on at least some of the big tech companies. 

The ICO enforcement action comes after a joint investigation with the Office of the Australian Information Commissioner (OAIC). The latter also ordered the company to stop processing citizens’ data and delete any information it held. France, Itlay and Canada have also sanctioned the company under the EU GDPR. 

So what next for Clearview? The ICO has very limited means to enforce a fine against foreign entities.  Clearview has no operations or offices in the UK so it could just refuse to pay. This may be problematic from a public relations perspective as many of Clearview’s customers are law enforcement agencies in Europe who may not be willing to associate themselves with a company that has been found to have breached EU privacy laws. 

When the Italian DP regulator fined Clearview €20m (£16.9m) earlier this year, it responded by saying it did not operate in any way that brought it under the jurisdiction of the EU GDPR. Could it argue the same in the UK, where it also has no operations, customers or headquarters? Students of our  UK GDPR Practitioner certificate course will know that the answer lies in Article 3(2) which is sets out the extra territorial effect of the UK GDPR:

This Regulation applies to the relevant processing of personal data of data subjects who are in the United Kingdom by a controller or processor not established in the United Kingdom where the processing activities are related to:

  1. the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the United Kingdom; or
  2. the monitoring of their behaviour as far as their behaviour takes place within the United Kingdom. [our emphasis]

Whilst clearly Clearview (no pun intended) is not established in the UK, the ICO is of the view it is covered by the UK GDPR due to Article 3(2). See the statement of the Commissioner, John Edwards:

“Clearview AI Inc has collected multiple images of people all over the world, including in the UK, from a variety of websites and social media platforms, creating a database with more than 20 billion images. The company not only enables identification of those people, but effectively monitors their behaviour and offers it as a commercial service. That is unacceptable. That is why we have acted to protect people in the UK by both fining the company and issuing an enforcement notice.”

If Clearview does appeal, we will hopefully receive judicial guidance about the territorial scope of the  UK GDPR.   

UPDATE 19/10/22): Clearview’s appeal against the ICO’s £7.5 million fine is scheduled for 21-23 November in the First Tier Tribunal(Information Rights).

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

Law Firm Fined For GDPR Breach: What Went Wrong? 

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. 

Patch Management 

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.

Action Points 

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:

  1. 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.
  2. 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.
  3. Have plans in place for a cyber security breach. See our Managing Personal Data Breaches workshop. 

More useful advice in the ICO’s guidance note on ransomeware and DP compliance.

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

Cabinet Office Receives £500,000 GDPR Fine

The Information Commissioner’s Office (ICO) has fined the Cabinet Office £500,000 for disclosing postal addresses of the 2020 New Year Honours recipients online.

The New Year Honours list is supposed to “recognise the achievements and service of extraordinary people across the United Kingdom.” However in 2020 the media attention was on the fact that, together with the names of recipients, the Cabinet Office accidentally published their addresses; a clear breach of the General Data Protection Regulation (GDPR) particularly the sixth data protection principle and Article 32 (security).

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.)

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

Lloyd v Google: What DPOs need to know

Last week, the UK Supreme Court handed down its much anticipated judgement in the case of Lloyd v Google LLC [2021] 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 actually occurred. 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. 

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

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.

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