Category: ICO

The TikTok GDPR Fine

In recent months, TikTok has been accused of aggressive data harvesting and poor security issues. A number of governments have now taken a view that the video sharing platform represents an unacceptable risk that enables Chinese government surveillance. In March, UK government ministers were banned from using the TikTok app on their work phones. The United States, Canada, Belgium and India have all adopted similar measures. 

On 4th April 2023, the Information Commissioner’s Office (ICO) issued a £12.7 million fine to TikTok for a number of breaches of the UK General Data Protection Regulation (UK GDPR), including failing to use children’s personal data lawfully. This follows a Notice of Intent issued in September 2022.

Article 8(1) of the UK GDPR states the general rule that when a Data Controller is offering an “information society services”  (e.g. social media apps and gaming sites) directly to a child, and it is relying on consent as its lawful basis for processing, only a child aged 13 or over is able provide their own consent. For a child under 13, the Data Controller must seek consent from whoever holds parental responsibility. Article 8(2) further states:

“The controller shall make reasonable efforts to verify in such cases that consent is given or authorised by the holder of parental responsibility over the child, taking into consideration available technology.”

In issuing the fine, the ICO said TikTok had failed to comply with Article 8 even though it ought to have been aware that under 13s were using its platform. It also failed to carry out adequate checks to identify and remove underage children from its platform. The ICO estimates up to 1.4 million UK children under 13 were allowed to use the platform in 2020, despite TikTok’s own rules not allowing children of that age to create an account.

The ICO investigation found that a concern was raised internally with some senior employees about children under 13 using the platform and not being removed. In the ICO’s view TikTok did not respond adequately. John Edwards, the Information Commissioner, said:

“TikTok should have known better. TikTok should have done better. Our £12.7m fine reflects the serious impact their failures may have had. They did not do enough to check who was using their platform or take sufficient action to remove the underage children that were using their platform.”

In addition to Article 8 the ICO found that, between May 2018 and July 2020, TikTok breached the following provisions of the UK GDPR:

  • Article 13 and 14 (Privacy Notices) – Failing to provide proper information to people using the platform about how their data is collected, used, and shared in a way that is easy to understand. Without that information, users of the platform, in particular children, were unlikely to be able to make informed choices about whether and how to engage with it; and
  • Article 5(1)(a) (The First DP Principle) – Failing to ensure that the personal data belonging to its UK users was processed lawfully, fairly and in a transparent manner. 

Notice of Intent

It is noticeable that this fine is less than half the amount (£27 million) in the Notice of Intent. The ICO said that it had taken into consideration the representations from TikTok and decided not to pursue its provisional finding relating to the unlawful use of Special Category Data. Consequently this potential infringement was not included in the final amount of the fine.

We have been here before! In 2018 British Airways was issued with a Notice of Intent in the sum of £183 Million but the actual fine in July 2020 was for £20 million. Marriott International Inc was fined £18.4 million in 2020; much lower than the £99 million set out in the original notice. Some commentators have argued that the fact that fines are often substantially reduced (from the notice to the final amount) suggests the ICO’s methodology is flawed.

An Appeal?

In a statement, a TikTok spokesperson said: 

“While we disagree with the ICO’s decision, which relates to May 2018 to July 2020, we are pleased that the fine announced today has been reduced to under half the amount proposed last year. We will continue to review the decision and are considering next steps.”

We suspect TikTok will appeal the fine and put pressure on the ICO to think about whether it has the appetite for a costly appeal process. The ICO’s record in such cases is not great. In 2021 it fined the Cabinet Office £500,000 for disclosing postal addresses of the 2020 New Year Honours recipients. The Cabinet Office appealed against the amount of the fine arguing it was “wholly disproportionate”. A year later, the ICO agreed to a reduction to £50,000. Recently an appeal against the ICO’s fine of £1.35 million issued to Easylife Ltd was withdrawn, after the parties reached an agreement whereby the amount of the fine was reduced to £250,000.

The Children’s Code

Since the conclusion of the ICO’s investigation of TikTok, the regulator has published the Children’s Code. This is a statutory code of practice aimed at online services, such as apps, gaming platforms and web and social media sites, that are likely to be accessed by children. The code sets out 15 standards to ensure children have the best possible experience of online services. In September, whilst marking the Code’s anniversary, the ICO said:

“Organisations providing online services and products likely to be accessed by children must abide by the code or face tough sanctions. The ICO are currently looking into how over 50 different online services are conforming with the code, with four ongoing investigations. We have also audited nine organisations and are currently assessing their outcomes.”

With increasing concern about security and data handling practices across the tech sector (see the recent fines imposed by the Ireland’s Data Protection Commission on Meta) it is likely that more ICO regulatory action will follow. 

This and other GDPR developments will be discussed in detail on our forthcoming GDPR Update workshop.  

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Experian’s GDPR Appeal: Lawfulness, Fairness, and Transparency

On 20th February 2023, the First-Tier (Information Rights) Tribunal (FTT) overturned an Enforcement Notice issued against Experian by the Information Commissioner’s Office (ICO). 

This case relates to Experian’s marketing arm, Experian Marketing Services (EMS) which provides analytics services for direct mail marketing companies. It obtains personal data from three types of sources; publicly available sources, third parties and Experian’s credit reference agency (CRA) business. The company processes this personal data to build profiles about nearly every UK adult. An individual profile can contain over 400 data points. The company sells access to this data to marketing companies that wish to improve the targeting of their postal direct marketing communications. 

The ICO issued an Enforcement Notice against Experian in April 2020, alleging several GDPR violations namely; Art. 5(1)(a) (Principle 1, Lawfulness, fairness, and transparency), Art. 6(1) (Lawfulness of processing) and Art. 14 (Information to be provided where personal data have not been obtained from the data subject). 

Fair and Transparent Processing: Art 5(1)(a) 

The ICO criticised Experian’s privacy notice for being unclear and for not emphasising the “surprising” aspects of Experian’s processing. It ordered Experian to: 

  • Provide an up-front summary of Experian’s direct marketing processing. 
  • Put “surprising” information (e.g. regarding profiling via data from multiple sources) on the first or second layer of the notice. 
  • Use clearer and more concise language. 
  • Disclose each source and use of data and explain how data is shared, providing examples.  

The ICO also ordered Experian to stop using credit reference agency data (CRA data) for any purpose other than those requested by Data Subjects. 

Lawful Processing: Arts. 5(1)(a) and 6(1) 

All processing of personal data under the GDPR requires a legal basis. Experian processed all personal data held for marketing purposes on the basis of its legitimate interests, including personal data that was originally collected on the basis of consent. Before relying on legitimate interests, controllers must conduct a “legitimate interests assessment” to balance the risks of processing the risks. Experian had done this, but the ICO said the company had got the balance wrong. It ordered Experian to: 

  • Delete all personal data that had been collected via consent and was subsequently being processed on the basis of Experian’s legitimate interests. 
  • Stop processing personal data where an “objective” legitimate interests assessment revealed that the risks of the processing outweigh the benefits. 
  • Review the GDPR compliance of all third parties providing Experian with personal data. 
  • Stop processing any personal data that has not been collected in a GDPR-compliant way. 

Transparency: Art. 14 

Art. 14 GDPR requires controllers to provide notice to data subjects when obtaining personal data from a third-party or publicly available source. Experian did not do provide such notices relying on the exceptions in Art 14. 

Where Experian had received personal data from third parties, it said that it did not need to provide a notice because “the data subject already has the information”. It noted that before a third party sent Experian personal data, the third party would provide Data Subjects with its own privacy notice. That privacy notice would contain links to Experian’s privacy notice.
Where Experian had obtained personal data from a publicly available source, such as the electoral register, it claimed that to provide a notice would involve “disproportionate effort”. 

The ICO did not agree that these exceptions applied to Experian, and ordered it to: 

  • Send an Art. 14 notice to all Data Subjects whose personal data had been obtained from a third-party source or (with some exceptions) a publicly available source. 
  • Stop processing personal data about Data Subjects who had not received an Art. 14 notice. 

The FTT Decision  

The FTT found that Experian committed only two GDPR violations: 

  • Failing to provide an Art. 14 notice to people whose data had been obtained from publicly available sources. 
  • Processing personal data on the basis of “legitimate interests” where that personal data had been originally obtained on the basis of “consent” (by the time of the hearing, Experian had stopped doing this). 

The FTT said that the ICO’s Enforcement Notice should have given more weight to:  

  • The costs of complying with the corrective measures. 
  • The benefits of Experian’s processing. 
  • The fact that Data Subjects would (supposedly) not want to receive an Art. 14 notice. 

The FTT overturned most of the ICO’s corrective measures. The only new obligation on Experian is to send Art. 14 notices in future to some people whose data comes from publicly available sources. 

FTT on Transparency 

Experian had improved its privacy notice before the hearing, and the FTT was satisfied that it met the Art. 14 requirements. It agreed that Experian did not need to provide a notice to Data Subjects where it had received their personal data from a third party. The FTT said that “…the reasonable data subject will be familiar with hyperlinks and how to follow them”.
People who wanted to know about Experian’s processing had the opportunity to learn about it via third-party privacy notices. 

However, the FTT did not agree with Experian’s reliance on the “disproportionate effort” exception. In future, Experian will need to provide Art. 14 notices to some Data Subjects whose personal data comes from publicly available sources. 

FTT on Risks of Processing 

An ICO expert witness claimed that Experian’s use of CRA data presented a risk to Data Subjects. The witness later admitted he had misunderstood this risk. The FTT found that Experian’s use of CRA data actually decreased the risk of harm to Data Subjects. For example, Experian used CRA data to “screen out” data subjects with poor credit history from receiving marketing about low-interest credit cards. The FTT found that this helped increase the accuracy of marketing and was therefore beneficial. As such, the FTT found that the ICO had not properly accounted for the benefits of Experian’s processing of CRA data. 

The ICO’s Planned Appeal 

The FTT’s decision focuses heavily on whether Experian’s processing was likely to cause damage or distress to Data Subjects. Because the FTT found that the risk of damage was low, Experian could rely on exceptions that might not have applied to riskier processing.  

The ICO has confirmed that it will appeal the decision. There are no details yet on their arguments but they may claim that the FTT took an excessively narrow interpretation of privacy harms. 

This and other data protection developments will be discussed in detail on our forthcoming  GDPR Update  workshop. There are only 3 places left on our next 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. 

The Data Protection and Digital Information Bill: A new UK GDPR?

In July the Government published the Data Protection and Digital Information Bill, the next step in its much publicised plans to reform the UK Data Protection regime following Brexit. 

In the Government’s response to the September 2021 consultation (“Data: A New Direction”) it said it intended “to create an ambitious, pro-growth and innovation-friendly data protection regime that underpins the trustworthy use of data.” To achieve this, the new Bill proposes substantial amendments to existing UK data protection legislation; namely the UK GDPR, the Data Protection Act 2018 and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”). There is no shiny new Data Protection Act 2022 or even a new colour for the UK GDPR! Perhaps a missed opportunity to showcase the benefits of Brexit! 

In addition to reforming core data protection law, the Bill deals with certification of digital identity providers, electronic registers of births and deaths and information standards for data-sharing in the health and adult social care system. The notable DP provisions are set out below.

Amended Definition of Personal Data

Clause 1 of the Bill limits the scope of personal data to:

  • where the information is identifiable by the controller or processor by reasonable means at the time of the processing; or
  • where the controller or processor ought to know that another person will likely obtain the information as a result of the processing and the individual will likely be identifiable by that person by reasonable means at the time of the processing.

This proposed change would limit the assessment of identifiability of data to the controller or processor, and persons who are likely to receive the information, rather than anyone in the world. It could make it easier for organisations to achieve data anonymisation as they would no longer need to concern themselves with potential future identifiability, with the focus instead being on identifiability “at the time of the processing”. On the other hand, the change does not address the risk of indirect identification.

Vexatious Data Subject Requests

Article 12 of the UK GDPR allows controllers to refuse to comply with data subject rights requests (or charge a fee) when the requests are “manifestly unfounded” or “excessive”.  Clause 7 of the Bill proposes to replace this with “vexatious” or “excessive”. Examples of vexatious requests given in the Bill are those requests intended to cause distress, not made in good faith, or that are an abuse of process. All these could easily fit into “manifestly unfounded” and so it is difficult to understand the need for change here. 

Data Subject Complaints

Currently, the UK GDPR allows a data subject to complain to the Information Commissioner, but nothing expressly deals with whether or how they can complain to a controller. Clause 39 of the Bill would make provision for this and require the controller to acknowledge receipt of such a complaint within 30 days and respond substantively “without undue delay”. However, under clause 40, if a data subject has not made a complaint to the controller, the ICO is entitled not to accept the complaint.

Much was made about “privacy management programmes” in the Government’s June announcement. These are not expressly mentioned in the Bill but most of the proposals that were to have fallen under that banner are still there (see below).

Senior Responsible Individuals

As announced in June, the obligation for some controllers and processors to appoint a Data Protection Officer (DPO) is proposed to be removed. However, public bodies and those who carry out processing likely to result in a “high risk” to individuals, are required (by clause 14) to designate a senior manager as a “Senior Responsible Individual”. Just like the DPO, the SRI must be adequately resourced and cannot be dismissed for performing their tasks under the role. The requirement for them to be a senior manager (rather than just reporting to senior management, as current DPOs must) will cause problems for those organisations currently using outsourced DPO services.

ROPAs and DPIAs

The requirement for Records of Processing Activities (ROPAs) will also go. Clause 15 of the Bill proposes to replace it with a leaner “Record of Processing of Personal Data”.  Clause 17 will replace Data Protection Impact Assessments (DPIAs) with leaner and less prescriptive Assessments of High Risk Processing. Clause 18 ensures that controllers are no longer required, under Article 36 of the UK GDPR, to consult the ICO on certain high risk DPIAs.

Automated Decision Making

Article 22 of UK GDPR currently confers a “right” on data subjects not to be subject to automated decision making which produces legal effects or otherwise significantly affects them. Clause 11 of the Bill reframes Article 22 in terms of a positive right to human intervention. However, it would only apply to “significant” decisions, rather than decisions that produce legal effects or similarly significant effects. It is unclear whether this will make any practical difference. 

International Transfers 

The judgment of the European Court of Justice (ECJ) in “Schrems II” not only stated that organisations that transfer personal data to the US can no longer rely on the Privacy Shield Framework as a legal transfer tool. It also said that in any international data transfer situation, whether to the USA or other countries, the data exporter needs to make a complex assessment  about the recipient country’s data protection legislation to ensure that it adequately protects the data especially from access by foreign security agencies (a Transfer Impact Assessment or TIA) .  

The Bill amends Chapter 5 of the UK GDPR (international transfers) with the introduction of the “data protection test” for the above mentioned assessment. This would involve determining if the standard of protection provided for data subjects in the recipient country is “not materially lower” than the standard of protection in the UK. The new test would apply both to the Secretary of State, when making “adequacy” determinations, and to controllers, when deciding whether to transfer data. The explanatory notes to the Bill state that the test would not require a “point- by-point comparison” between the other country’s regime and the UK’s. Instead an assessment will be “based on outcomes i.e. the overall standard of protection for a data subject”. 

An outcome based approach will be welcome by organisations who regularly transfer personal data internationally especially where it is of no practical interest to foreign security agencies. However, this proposed approach will attract the attention of the EU (see later). (see also our forthcoming International Transfers webinar).

The Information Commission

Under clause 100 of the Bill, the Information Commissioner’s Office will transform into the Information Commission; a corporate body with a chief executive (presumably John Edwards, the current Commissioner). 

The Commission would have a principal function of overseeing data protection alongside additional duties such as to have regard to the desirability of promoting innovation; the desirability of promoting competition; the importance of the prevention, investigation, detection and prosecution of criminal offences; and the need to safeguard public security and national security. New powers for the Commission include an audit/assessment power (clause 35) to require a controller to appoint a person to prepare and provide a report and to compel individuals to attend for interviews (clause 36) in civil and criminal investigations.

The Bill also proposes to abolish the Surveillance Camera Commissioner and the Biometrics Commissioner.

Privacy and Electronic Communications (EC Directive) Regulations 2003 

Currently, under PECR, cookies (and similar technologies) can only be used to store or access information on end user terminal equipment without express consent where it is “strictly necessary” e.g. website security or proper functioning of the site. The Bill proposes allowing cookies to be used without consent for the purposes of web analytics and to install automatic software updates (see the GDPR enforcement cases involving Google Analytics). 

Another notable proposed change to PECR, involves extending “the soft opt-in” to electronic communications from organisations other than businesses. This would permit political parties, charities and other non-profits to send unsolicited email and SMS direct marketing to individuals without consent, where they have an existing supporter relationship with the recipient. 

Finally on PECR, the Bill proposes to increase the fines for infringement from the current maximum of £500,000 to UK GDPR levels i.e.  up to £17.5m of 4% of global annual turnover (whichever is higher). 

Business Data

The Bill would give the Secretary of State and the Treasury the power to issue regulations requiring “data holders” to make available “customer data” and “business data” to customers or third parties, as well as regulations requiring certain processing, such as collection and retention, of such data. “Customers” would not just be data subjects, but anyone who purchased (or received for free) goods, services or digital content from a trader in a consumer (rather than business) context. “Business data” would include information about goods, services and digital content supplied or provided by a trader. It would also include information about where those goods etc. are supplied, the terms on which they are supplied or provided, prices or performance and information relating to feedback from customers. Customers would potentially have a right to access their data, which might include information on the customer’s usage patterns and the price paid to aid personalised price comparisons. Similarly, businesses could potentially be required to publish, or otherwise make available, business data.

These provisions go much further than existing data portability provisions in the UK GDPR. The latter does not guarantee provision of data in “real time”, nor cover wider contextual data. Nor do they apply where the customer is not an individual.

Adequacy?

The Bill is currently making its way through Parliament. The impact assessment reiterates that “the government’s view is that reform of UK legislation on personal data is compatible with the EU maintaining free flow of personal data from Europe.”  However, with the multiple amendments proposed in the Bill, the UK GDPR is starting to look quite different to the EU version. And the more the two regimes diverge, the more there is a risk that the EU might put a “spanner in the works” when the UK adequacy assessment is reviewed in 2024. Much depends on the balance struck in the final text of the Bill. 

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. 

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.

To Share or Not to Share; That is the Question! 

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On 5th October 2021 the Data Sharing Code of Practice from the Information Commissioner’s Office came into effect for UK based Data Controllers.  

The code is not law nor does it ‘enforce’ data sharing, but it does provide some useful steps to consider when sharing personal data either as a one off or as part of an ongoing arrangement. Data Protection professionals, and the staff in the organisations they serve, will still need to navigate a way through various pressures, frameworks, and expectations on the sharing of personal data; case by case, framework by framework. A more detailed post on the contents of the code can be read here.  

Act Now Training is pleased to announce a new full day ‘hands on’ workshop for Data Protection professionals on Data Sharing. Our expert trainer, Scott Sammons, will look at the practical steps to take, sharing frameworks and protocols, risks to consider etc. Scott will also explore how, as part of your wider IG framework, you can establish a proactive support framework; making it easier for staff to understand their data sharing obligations/expectations and driving down the temptation to use a ‘Data Protection Duck out’ for why something was shared/not shared inappropriately.  

Delegates will also be encouraged to bring a data sharing scenario to discuss with fellow delegates and the tutor. This workshop can also be customised and delivered to your organisation at your premises or virtually. Get in touch to learn more.

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Law Enforcement Processing and the Meaning of “authorised by law”

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In October, there was a decision in the Scottish courts which will be of interest to data protection practitioners and lawyers when interpreting Part 3 of the Data Protection Act 2018 (law enforcement processing)  and more generally the UK GDPR.

The General Teaching Council For Scotland v The Chief Constable of The Police Service of Scotland could fairly be described as a skirmish about expenses (known as costs in other parts of the UK) in seven Petitions to the Court of Session by the General Teaching Council for Scotland (“GTCS”) against the Chief Constable of the Police Service of Scotland (“Police Scotland”). The petitions essentially sought disclosure of information, held by Police Scotland, to the GTCS which the GTCS had asked Police Scotland for, but which the latter had refused to provide. 

This case will be of interest to data protection practitioners for two reasons: (1) there is some consideration by Lord Uist as to what “authorised by law” means in the context of processing personal data under Part 3 DPA 2018 for purposes other than law enforcement purposes; and (2) it contains a salutary reminder that while advice from the Information Commissioner’s Office (ICO) can be useful, it can also be wrong; as well as the responsibilities of data controllers in relation to their decisions.

The GTCS is the statutory body responsible for the regulation of the teaching profession in Scotland. They are responsible for assessing the fitness of people applying to be added to the register of teachers in Scotland as well as the continuing fitness of those already on the register. In reliance of these functions, the GTCS had requested information from Police Scotland in order to assist it in fulfilling these duties. The information held by Police Scotland was processed by them for the law enforcement purposes; it thus fell within Part 3 of the DPA 2018. In response, the GTCS petitioned the Court of Session for orders requiring Police Scotland to release the information. Police Scotland did not oppose the Petitions and argued that it should not be found liable for the expenses of the GTCS in bringing the Petitions to the court. This was on the basis that it had not opposed them and it could not have given the GTCS information without the court’s order.

The ICO advice to Police Scotland

Police Scotland refused to supply the information without a court order on the basis that to do so would be processing the personal data for purposes other than the law enforcement purposes where the disclosure was authorised by law in contravention of the second Data Protection Principle under Section 36 of the DPA 2018 which states:

“(1) The second data protection principle is that – (a) the law enforcement purpose for which personal data is collected on any occasion must be specified, explicit and legitimate, and (b) personal data so collected must not be processed in a manner that is incompatible with the purpose for which it was collected. 

(2) Paragraph (b) of the second data protection principle is subject to subsections (3) and (4). 

(3) Personal data collected for a law enforcement purpose may be processed for any other law enforcement purpose (whether by the controller that collected the data or by another controller) provided that – 

(a) the controller is authorised by law to process that data for the other purpose, and
(b) the processing is necessary and proportionate to that other purpose. 

(4) Personal data collected for any of the law enforcement purposes may not be processed for a purpose that is not a law enforcement purpose unless the processing is authorised by law.” 

Police Scotland was relying upon advice from the ICO. That advice was that Police Scotland “would require either an order of the court or a specific statutory obligation to provide the information”, otherwise Police Scotland would be breaching the requirements of the DPA 2018. A longer form of the advice provided by the ICO to Police Scotland may be found at paragraph 10 of Lord Uist’s decision.

The ICO’s advice to Police Scotland was in conflict with what the ICO said in its code of practice issued under section 121 of the DPA 2018. There the ICO said that “authorised by law” could be “for example, statute, common law, royal prerogative or statutory code”. 

Authorised by Law

Lord Uist decided that the position adopted by Police Scotland, and the advice given to them by the ICO, was “plainly wrong”; concluding that the disclosure of the information requested by the GTCS would have been authorised by law without a court order.

The law recognises the need to balance the public interest in the free flow of information to the police for criminal proceedings, which requires that information given in confidence is not used for other purposes, against the public interest in protecting the public by disclosing confidential  information to regulatory bodies charged with ensuring professionals within their scope of responsibility are fit to continue practising. In essence, when the police are dealing with requests for personal data processed for law enforcement purposes by regulatory bodies, they must have regard to the public interest in ensuring that these regulatory bodies, which exist to protect the public, are able to carry out their own statutory functions.

Perhaps more significantly, the law also recognises that a court order is not required for such disclosures to be made to regulatory bodies. This meant that there was, at common law, a lawful basis upon which Police Scotland could have released the information requested by the GTCS to them. Therefore, Police Scotland would not have been in breach of section 36(4) of the DPA 2018 had they provided the information without a court order.

In essence, a lack of a specific statutory power to require information to be provided to it, or a specific statutory requirement on the police to provide the information, does not mean a disclosure is not authorised by law. It is necessary, as the ICO’s code of practice recognises, to look beyond statute and consider whether there is a basis at common law. 

Police Scotland was required by Lord Uist to meet the expenses of the GTCS in bringing the Petitions. This was because the Petitions had been necessitated by Police Scotland requiring a court order when none was required. Lord Uist was clear that Police Scotland had to take responsibility for their own decision; it was not relevant to consider that they acted on erroneous advice from the ICO.

This case serves as a clear reminder that, while useful, advice from the ICO can be wrong. The same too, of course, applies in respect of the guidance published by the ICO. It can be a good starting point, but it should never be the starting and end point. When receiving advice from the ICO it is necessary to think about that advice critically; especially where, as here, the advice contradicts other guidance published by the ICO. It is necessary to consider why there is a discrepancy and which is correct: the advice or the guidance?
It may, of course, be the case that both are actually incorrect.

The finding of liability for expenses is also a reminder that controllers are ultimately responsible for the decisions that they take in relation to the processing of personal data.
It is not good enough to effectively outsource that decision-making and responsibility to the ICO. Taking tricky questions to the regulator does not absolve the controller from considering the question itself, both before and after seeking the advice of the ICO.

Finally, this case may also be a useful and helpful reference point when considering whether something is “authorised by law” for the purposes of processing under Part 3 of the DPA 2018. It is, however, a first instance decision (the Outer House of the Court of Session being broadly similar in status to the High Court in England and Wales) and that ought to be kept in mind when considering it.

Alistair Sloan is a Devil (pupil) at the Scottish Bar; prior to commencing devilling he was a solicitor in Scotland and advised controllers, data protection officers and data subjects on a range of information law matters.

We have just announced a new full day workshop on Part 3 of the DPA 2018. See also our Part 3 Policy Pack.

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First ICO GDPR Fine Reduced on Appeal

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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. 

Our  GDPR Practitioner Certificate is our most popular certificate course available both online and classroom. We have added more dates.

Ticketmaster Fined £1.25m Over Cyber Attack

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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.  

We have some places available on our forthcoming Cyber Security for DPOs workshop. This and other GDPR developments will be covered in our next online GDPR update workshop.

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