Category: UK GDPR

The Data Protection and Digital Information Bill: Where are we now? 

The Data Protection and Digital Information Bill is currently in the Committee stage of the House of Lords. It will make changes to the UK GDPR, the Data Protection Act 2018 and Privacy and Electronic Communications (EC Directive) Regulations 2003 (“PECR”). It is expected to be passed in May and will probably come into force after a short transitional period.  

The current Bill is not substantially different to the previous version whose passage through Parliament was paused in September 2022 so ministers could engage in “a co-design process with business leaders and data experts” and move away from the “one-size-fits-all’ approach of the European Union’s GDPR.”  

The Same 

Many of the proposals in the new Bill are the same as contained in the previous Bill. These include: 

  • Amended Definition of Personal Data: This proposed change would limit the assessment of identifiability of data to the controller or processor, and persons who are likely to receive the information, rather than anyone in the world.

  • Vexatious Data Subject Requests: The terms “manifestly unfounded” or “excessive” requests, in Article 12 of the UK GDPR, will be replaced with “vexatious” or “excessive” requests. Explanation and examples of such requests will also be included. 

  • Data Subject Complaints: Data Controllers will be required to acknowledge receipt of Data Subject complaints within 30 days and respond substantively “without undue delay”. The ICO will be entitled not to accept a complaint if a Data Subject has not made a complaint to the controller first. 

  • Data Protection Officer: The obligation for some controllers and processors to appoint a Data Protection Officer (DPO) will be removed. However, public bodies and those who carry out processing likely to result in a “high risk” to individuals will be required to designate a senior manager as a “Senior Responsible Individual”.  

  • Data Protection Impact Assessments: These will be replaced by leaner and less prescriptive “Assessments of High-Risk Processing.”  

  • International Transfers: There will be a new approach to the test for adequacy applied by the UK Government to countries (and international organisations) and when Data Controllers are carrying out a Transfer Impact Assessment or TIA. The threshold for this new “data protection test” will be whether a jurisdiction offers protection that is “not materially lower” than under the UK GDPR. (For more detail see also our forthcoming International Transfers webinar). 
  • The Information Commission: The Information Commissioner’s Office will transform into the Information Commission; a corporate body with a chief executive. 

  • PECR: Cookies will be allowed to be used without consent for the purposes of web analytics and to install automatic software updates. Furthermore, non-commercial organisations (e.g. charities and political parties) will be able to rely on the “soft opt-in” for direct marketing purposes, if they have obtained contact details from an individual expressing interest. Finally, there will be an increase to the fines from the current maximum of £500,000 to UK GDPR levels i.e. up to £17.5m of 4% of global annual turnover (whichever is higher).  

The Changes 

The main changes are summarised below: 

  • Scientific Research: The definition of scientific research is amended so that it now includes research for the purposes of commercial activity. This expands the circumstances in which processing for research purposes may be undertaken, providing a broader consent mechanism and exemption to the fair processing requirement. 
  • Legitimate Interests: The Previous Bill proposed that businesses could rely on legitimate interests (Article 6 lawful basis) without the requirement to conduct a balancing test against the rights and freedoms of data subjects where those legitimate interests are “recognised”. These “recognised” legitimate interests cover purposes for processing such as national security, public security, defence, emergencies, preventing crime, safeguarding and democratic engagement.  The new Bill, whilst keeping the above changes, introduces a non-exhaustive list of cases where organisations may rely on the “legitimate interests” legal basis, including for the purposes of direct marketing, transferring data within the organisation for administrative purposes and for the purposes of ensuring the security of network and information systems; although a balancing exercise still needs to be conducted in these cases.  
  • Automated Decision Making: The Previous Bill clarified that its proposed restrictions on automated decision-making under Article 22 UK GDPR should only apply to decisions that are a result of automated processing without “meaningful human involvement”. The new Bill states that profiling will be a relevant factor in the assessment as to whether there has been meaningful human involvement in a decision.  
  • Records of Processing Activities (ROPA): The Previous Bill streamlined the required content of ROPAs. The new Bill exempts all controllers and processors from the duty to maintain a ROPA unless they are carrying out high risk processing activities.  
  • Subject Access: Clause 12 of the Bill introduced at the House of Commons Report Stage amends Article 12 of UK GDPR (and the DPA 2018) so that Data Controllers are only obliged to undertake a reasonable and proportionate search for information request under the right of access.  

Adequacy 

Although the Government states that the new Bill is “a new system of data protection”, it still retains the UK GDPR’s structure and fundamental obligations. Organisations that are already compliant with the UK GDPR will not be required to make any major changes to their systems and processes.  

The EU conducts a review of adequacy with the UK every four years; the next adequacy decision is due on 27th June 2025. Some commentators have suggested that the changes may jeopardise the UK’s adequate status and so impact the free flow of data between the UK and EU. Defend Digital Me, a civil liberties organisation, has claimed that the Bill would, among other things, weaken data subjects’ rights, water down accountability requirements, and reduce the independence of the ICO.  

Other Parts of the Bill 

The Bill would also: 

  • establish a framework for the provision of digital verification services to enable digital identities to be used with the same confidence as paper documents. 
     
  • increase fines for nuisance calls and texts under PECR. 

  • update the PECR to cut down on ‘user consent’ pop-ups and banners. 

  • allow for the sharing of customer data, through smart data schemes, to provide services such as personalised market comparisons and account management. 
  • reform the way births and deaths are registered in England and Wales, enabling the move from a paper-based system to registration in an electronic register.
  • facilitate the flow and use of personal data for law enforcement and national security purposes. 

  • create a clearer legal basis for political parties and elected representatives to process personal data for the purposes of democratic engagement. 

Reading the Parliamentary debates on the Bill, it seems that the Labour party have no great desire to table substantial amendments to be the Bill. Consequently, it is expected that the Bill will be passed in a form similar to the one now published.  

Learn more about the updated bill with our Data Protection and Digital Information Bill: Preparing for GDPR and PECR Reforms workshop. Dive into the issues discussed in this blog and secure your spot now. 

Act Now Launches Updated GDPR Practitioner Certificate  

Act Now Training is pleased to announce the launch of its updated GDPR Practitioner Certificate. This course has been running successfully for the past five years with excellent delegate reviews: 

“The course was very useful as an IG Officer. The trainer was knowledgeable and explained some complex aspects of the legislation using interesting examples and real life scenarios. The course materials and handbook are invaluable and I know I will reuse them in conjunction with my usual resources.” NC, Lincolnshire County Council  

“I would highly recommend this online course which was well structured and interactive. The course tutor was engaging and made a complex subject accessible. There was a good balance between understanding the legal framework and practical application. I learnt a great deal which will help me in my DPO role.” RS, London Councils  

Key features of the new course include an updated course curriculum, new exercises and more emphasis on helping delegates develop key DPO skills.  

Our Motivation  

This revised course is part of our ongoing commitment to encourage and assist new talent in the IG profession. Through our involvement in NADPO and the IRMS over the past 20 years, Act Now has been  actively encouraging new entrants to the IG profession and providing quality training to assist in their learning and development. When the DP and IG Apprenticeship was launched last year, we became one of the first training companies to partner up with a leading apprenticeship provider to deliver specialist IG training and materials to apprentices. These have led to our partner, Damar, recruiting over 100 apprentices and helping them lay the foundations for a successful career in IG.  

Course Content 

The course curriculum has been updated in the light of Act Now’s Skills and Competency Framework for DPOs. For the past three years we have been working on this framework, alongside industry experts and education professionals, by thoroughly analysing all the core skills and competencies required for the DPO role and how they map against our wider GDPR course curriculum.  

Completing the course will enable delegates to gain a thorough understanding of the UK GDPR and develop the skills required to do their job with greater ease and confidence. In addition to the main course topics such as principles, rights and enforcement we have introduced new topics such as the ICO Accountability Framework. We also take time to consider the latest ICO enforcement action and the changes to the UK data protection regime proposed by the recently announced Data Protection and Digital Information Bill. 

Completing the GDPR Practitioner Certificate will enable delegates to gain a thorough understanding of the UK GDPR. The course will help delegates interpret the data protection principles in a practical context, drafting privacy notices, undertaking DPIAs and reporting data breaches. 

The course teaching style is based on four practical and engaging workshops covering theory alongside hands-on application using case studies that equip delegates with knowledge and skills that can be used immediately. Delegates will also have personal tutor support throughout the course and access to a comprehensive revised online resource lab. 

The DPO Learning Pathway 

The updated UK GDPR Practitioner Certificate is part of our learning pathway for Data Protection Officers. Once completed they can move on to the Intermediate Certificate in GDPR Practice where the emphasis is on skills, as well as advanced knowledge, with delegates covering more challenging topics to gain a deeper awareness of the fundamental data protection principles.  

Our premier certification is the Advanced Certificate in GDPR Practice, tailored for seasoned Data Protection Officers seeking to refine and expand their expertise. The course comprises a rigorous set of masterclasses that engage delegates in dissecting and interpreting intricate GDPR scenarios through compelling case studies. This immersive experience empowers participants with the skills and confidence needed to tackle even the most challenging Data Protection and Privacy scenarios they may encounter.

If you would like a chat to discuss your suitability for any of our certificate courses, please get in touch.  

Spring Offer: Get 10% off on all day courses and special discounts on GDPR certificates. Click on the link to find out more and take advantage of this limited time offer!

Spring Offer: Get 10% off on all day courses and special discounts on GDPR certificates

Spring is around the corner, and what better way to celebrate than by learning something new? Act Now Training are offering a special Spring sale with 10% off on all one day courses until 21/04/23. Plus, we have some exciting discounts on our GDPR certificates! 

Our one day courses are designed to provide you with a comprehensive understanding of various information governance topics, including data protection, records management, FOI and information security. Whether you are a beginner or an experienced professional, our courses are tailored to meet your specific needs. 

But that’s not all! We also have some exclusive discounts on our GDPR certifications. You can get a 10% discount on our NEW Intermediate Certificate in GDPR course (Valued at £195) and a mega £150 off on our Advanced Certificate in GDPR Practice course. 

Our Intermediate Certificate in GDPR strengthens the foundations established by our UK GDPR Practitioner certificate. Delegates will cover more challenging topics and gain a deeper awareness of the fundamental data protection principles. It is an excellent option for those with an established knowledge base and experience in data protection who wish to level up their knowledge and sharpen their skills. 

Our Advanced Certificate in GDPR course is perfect for those who want to take their GDPR knowledge to the next level. This course covers the more complex aspects of GDPR and provides you with the practical skills needed to manage GDPR compliance effectively. You will learn how to break down complex multi-faceted scenarios and learn how to analyse case law, MPNs, ICO reprimands and Enforcement notices. This course is unlike any other, it challenges delegates with real world complex scenarios and is excellent in showcasing a much higher level of knowledge depth and understanding. 

Don’t miss this opportunity to enhance your information governance skills and take advantage of our Spring sale. To take advantage of this offer, simply book your chosen course before 21/04/23 and enter the code SPRING10 at checkout and the relevant discount will be applied.

Act Now Launches New Intermediate Certificate in GDPR Practice 

Act Now Training is pleased to announce the launch of the Intermediate Certificate in GDPR Practice.  

For the past three years, we have been working on a skills and competency framework for DPOs. Alongside industry experts and education professionals, we have undertaken a thorough analysis of all the core skills and competencies required for the DPO role and how they map against our wider GDPR course curriculum. The latter has been designed to allow delegates to easily map their personal learning journey and ensure they have the requisite level of knowledge and skill for their role. 

Through this work, we have identified a need to further develop DPOs who have undertaken our GDPR Practitioner Certificate but who now wish to hone their DPO skills. Hence the emphasis in the intermediate certificate is on skills, as well as advanced knowledge, with delegates covering more challenging topics to gain a deeper awareness of the fundamental data protection principles.  

This new course is part of our ongoing commitment to encouraging the development of Information Governance as a recognised profession. Through our involvement in NADPO and the IRMS over the past 20 years, Act Now has been actively encouraging new entrants to the IG profession and providing quality training to assist in their learning and development. When the DP and IG Apprenticeship was launched last year, we became one of the first training companies to partner up with a leading apprenticeship provider to deliver specialist IG training and materials to apprentices.
These have led to our partner, Damar, recruiting over 100 apprentices and helping them lay the foundations for a successful career in IG. 

Ibrahim Hasan, Course Director, said: 

“Having listened to the demand from our delegates and taken soundings from IG experts, we are excited to launch the Intermediate Certificate in GDPR Practice. This new course is a great option for those with an established knowledge base and experience in data protection who wish to level up their knowledge and sharpen their skills. It is also an ideal stepping stone for those contemplating our Advanced Certificate in GDPR Practice.” 

Content 

This new course will challenge delegates, who have completed our GDPR Practitioner Certificate, by looking at previously covered subjects in more depth and complexity. These include getting to grips with Principle 1 and interpreting lawfulness, fairness and transparency in the light of ICO and EU enforcement action. We also work through more complex subject access requests applying exemptions and considering the practical aspects.  

The course also covers new and topical data protection subjects such as the processing of  children’s data, use of AI and consideration of data ethics.
We also take time to compare data protection laws around the world and consider the changes to the UK data protection regime proposed by the recently announced revised Data Protection and Digital Information Bill. 

Format 

This course is set over three days (one day per week) and can be attended online or in the classroom. Each day is designed to develop delegates’ ability to understand and apply the UK DP law in a practical context using case studies and exercises. On completion of the course, delegates are required to complete a practical assessment within 30 days. 

Our teaching style is based on practical and engaging workshops covering theory alongside hands-on application. Delegates will have personal tutor support throughout the course and access to a comprehensive online resource lab ensuring they have the best opportunity for success. 

Who will this course benefit? 

This course is ideal for those who have completed our GDPR Practitioner Certificate who wish to sharpen their skills and knowledge before undertaking the Advanced Certificate in GDPR Practice. 

The first course is scheduled for April. We have a special introductory price for a limited period. If you would like a chat with Ibrahim to discuss your suitability for the course, please get in touch.  

UK GDPR Reform: Will There Be A New Consultation?

What is happening with the Government’s proposal for UK GDPR reform? Just like Donald Trump’s predicted “Red Wave” in the US Mid Term Elections, it’s turning out to be a bit of a ripple!

In July the Boris Johnson Government, published the Data Protection and Digital Information Bill. This was supposed to be the next step in its much publicised plans to reform the UK Data Protection regime following Brexit. The government projected it would yield savings for businesses of £1billion over ten years. (Key provisions of the bill are summarised in our blog post here.)

On 3rd October 2022, during the Conservative Party Conference, Michelle Donelan, the new Secretary for State for Digital, Culture, Media and Sport (DCMS), made a speech announcing a plan to replace the UK GDPR with a new “British data protection system”.

The Bill’s passage through Parliament was suspended. It seemed that drafters would have to go back to the drawing board to showcase even more “Brexit benefits”. There was even talk of another round of consultation. Remember the Bill is the result of an extensive consultation launched in September 2021 (“Data: A New Direction”).

Last week, Ibrahim Hasan, attended the IAPP Conference in Brussels. Owen Rowland, Deputy Director at the DCMS, told the conference that the latest “consultation” on the stalled bill will begin shortly. However he confirmed it will not be a full-blown public consultation:

“It’s important to clarify (the type of consultation). However, we are genuinely interested in continuing to engage with the whole range of stakeholders. Different business sectors as well as privacy and consumer groups,” Rowland said. “We’ll be providing details in the next couple of weeks in terms of the opportunities that we are going to particularly set up.”

The Bill may not receive a deep overhaul, but Rowland said he welcomes comments that potentially raise “amendments to (the existing proposal’s) text that we should make.” He added the consultation is being launched to avoid “a real risk” of missing important points and to provide “opportunities were not fully utilising” to gain stakeholder insights.

Rowland went on to suggest that the DCMS would conduct some roundtables. If any of our readers are invited to the aforementioned tables (round or otherwise) do keep us posted. Will it make a difference to the content of the bill? We are sceptical but time will tell. 

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.

ICO Reprimand for Misuse of Children’s Data: A Proportionate Response or a Let Off?

Last week, the Department for Education received a formal reprimand from the Information Commissioner’s Office(ICO) over a “serious breach” of the GDPR involving the unauthorised sharing of up to 28 million children’s personal data. But the Department has avoided a fine, despite a finding of “woeful” data protection practices.

The reprimand followed the ICO’s investigation into the sharing of personal data stored on the Learning Records Service (LRS) database, for which the DfE is the Data Controller. LRS provides a record of pupils’ qualifications that education providers can access. It contains both personal and Special Category Data and at the time of the incident there were 28 million records stored on it. Some of those records would have pertained to children aged 14 and over. 

The ICO started its investigation after receiving a breach report from the DfE about the unauthorised access to the LRS database. The DfE had only become aware of the breach after an exposé in a national Sunday newspaper.

The ICO found that the DfE’s poor due diligence meant that it continued to grant Trustopia access to the database when it advised the DfE that it was the new trading name for Edududes Ltd, which had been a training provider. Trustopia was in fact a screening company and used the database to provide age verification services to help gambling companies confirm customers were over 18. The ICO ruled that the DfE failed to:

  • protect against the unauthorised processing by third parties of data held on the LRS database for reasons other than the provision of educational services. Data Subjects were unaware of the processing and could not object or otherwise withdraw from this processing. Therefore the DfE failed to process the data fairly and lawfully in accordance with Article 5 (1)(a). 
  • have appropriate oversight to protect against unauthorised processing of personal data held on the LRS database and had also failed to ensure its confidentiality in accordance with Article 5 (1)(f). 

The ICO conducted a simultaneous investigation into Trustopia, during which the company confirmed it no longer had access to the database and the cache of data held in temporary files had been deleted. Trustopia was dissolved before the ICO investigation concluded and therefore regulatory action was not possible.

The DfE has been ordered to implement the following five measures to improve its compliance: 

  1. Improve transparency around the processing of the LRS database so Data Subjects are aware and are able to exercise their Data Subject rights, in order to satisfy the requirements of Article 5 (1)(a) of the UK GDPR. 
  • Review all internal security procedures on a regular basis to identify any additional preventative measures that can be implemented. This would reduce the risk of a recurrence to this type of incident and assist compliance with Article 5 (1)(f) of the UK GDPR. 
  • Ensure all relevant staff are made aware of any changes to processes as a result of this incident, by effective communication and by providing clear guidance. 
  • Complete a thorough and detailed Data Protection Impact Assessment, which adequately assesses the risk posed by the processing. This will enable the DfE to identify and mitigate the data protection risks for individuals. 

This investigation could, and many would say should, have resulted in a fine. However, in June 2022 John Edwards, the Information Commissioner, announced a new approach towards the public sector with the aim to reduce the impact of fines on the sector. Had this new trial approach not been in place, the DfE would have been issued with a fine of over £10 million. In a statement, John Edwards said:

“No-one needs persuading that a database of pupils’ learning records being used to help gambling companies is unacceptable. Our investigation found that the processes put in place by the Department for Education were woeful. Data was being misused, and the Department was unaware there was even a problem until a national newspaper informed them.

“We all have an absolute right to expect that our central government departments treat the data they hold on us with the utmost respect and security. Even more so when it comes to the information of 28 million children.

“This was a serious breach of the law, and one that would have warranted a £10 million fine in this specific case. I have taken the decision not to issue that fine, as any money paid in fines is returned to government, and so the impact would have been minimal. But that should not detract from how serious the errors we have highlighted were, nor how urgently they needed addressing by the Department for Education.”

The ICO also followed its new public sector enforcement approach 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 ICO said that, if the revised enforcement approach had not been in place, the service would have received a fine of £749,856. 

Some would say that the DFE has got off very lightly here and, given their past record, perhaps more stringent sanctions should have been imposed. Two years ago, the ICO criticised the DfE for secretly sharing children’s personal data with the Home Office, triggering fears it could be used for immigration enforcement as part of the government’s hostile environment policy. 

Many will question 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. This was recently reduced to £50,000 following a negotiated settlement of a pending appeal.

Compare the DfE reprimand with last month’s Monetary Penalty Notice in the sum of £1,350,000 issued to a private company, 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. With austerity coming back with a vengeance, no doubt the private sector will question the favourable terms for the public sector. 

Perhaps the Government will come to the private sector’s rescue. Following the new DCMS Secretary for State’s speech  last month, announcing a plan to replace the UK GDPR with a new “British data protection system” which cuts the “burdens” for British businesses, DCMS officials have said further delays to the Data Protection and Digital Information Bill are on the way. A new public consultation will be launched soon.

So far the EU is not impressed. A key European Union lawmaker has described meetings with the U.K. government over the country’s data protection reform plans as “appalling.” Italian MEP Fulvio Martusciello from the center-right European People’s Party said his impression from the visit was that Britain is “giving in on privacy in exchange for business gain.”

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. 

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. 

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. 

New DP and IG Practitioner Apprenticeship

Act Now Training has teamed up with Damar Training on materials and expertise underpinning its new Data Protection and Information Governance Practitioner Level 4 Apprenticeship.

The apprenticeship, which received final approval in March, will help develop the skills of those working in the increasingly important fields of data protection and information governance. 

With the rapid advancement of technology, there is a huge amount of personal data being processed by organisations, which is the subject of important decisions affecting every aspect of people’s lives. This poses significant legal and ethical challenges, as well as the risk of incurring considerable fines from regulators for non compliance. 

This apprenticeship aims to develop individuals into accomplished data protection and information governance practitioners with the knowledge, skills and competencies to address these challenges.

Ibrahim Hasan, Director of Act Now, said:

“We are excited to be working Damar Training to help deliver this much needed apprenticeship. We are committed to developing the IG sector and encouraging a diverse range of entrants to the IG profession. We have looked at every aspect of the IG Apprenticeship standard to ensure the training materials equip budding IG officers with the knowledge and skills they need to implement the full range of IG legislation in a practical way.”

Damar’s managing director, Jonathan Bourne, added:

“We want apprenticeships to create real, long-term value for apprentices and organisations. It is vital therefore that we work with partners who really understand not only the technical detail but also the needs of employers.

Act Now Training are acknowledged as leaders in the field, having recently won the Information and Records Management Society (IRMS) Supplier of the Year award for the second consecutive year. I am delighted therefore that we are able to bring together their 20 years of deep sector expertise with Damar’s 40+ year record of delivering apprenticeship in business and professional services.”

This apprenticeship has already sparked significant interest, particularly among large public and private sector organisations and professional services firms. Damar has also assembled an employer reference group that is feeding into the design process in real time to ensure that the programme works for employers.

The employer reference group met for the first time on May 25. It included industry professionals across a variety of sectors including private and public health care, financial services, local and national government, education, IT and data consultancy, some of whom were part of the apprenticeship trailblazer group.

If your organisation is interested in the apprenticeship please get in touch with us to discuss further.

Three New GDPR Workshops from Act Now Training

Act Now Training is pleased to announce three new additions to our GDPR workshop series. 

Data ethics is increasingly relevant to the role of information professionals. Just because the processing of personal data is lawful does not make it fair or ‘ethical’. And indeed, where something is fair it does not always mean it is lawful. Whilst the UK GDPR gives us some structure for working out what is a fair and proportionate use of personal data (and thus ethical), there can be a wide range of issues outside of the law to consider.  

Our Data Ethics workshop will explore what the term ‘Data Ethics’ actually means, the role it plays in the use of personal data (and indeed other data) and what practical steps information professionals can take to embed and promote data ethics within their organisations. From how to consider data ethics in DPIAs and sharing requests, through to embedding a practical data ethics framework in your organisation, we will pose questions, share experiences and best practice and where to find further guidance and support. 

A subject which has many ethical considerations is the use of Artificial Intelligence (also known as AI) and Machine Learning. AI is not coming; it is here. Whether ordering a taxi or submitting your tax return, AI is operating in the background. AI and Machine Learning have the capacity to improve our lives but, like all technologies, they have the potential to ruin lives too.  

Our new workshop, How to implement Good Information Governance into Artificial Intelligence & Machine Learning Projects, will explore exactly what ‘AI’ and ‘Machine Learning’ are and how they are starting to appear in the working environment. We will also explore the common challenges that these present focussing on GDPR as well as other information governance and records management issues.  Delegates will leave the workshop with practical ideas for how to approach Machine Learning and AI as well as awareness of key resources, current best practice and how they can keep up to date about a fast-developing area of technology. Think that AI is something for future generations to deal with? This workshop will make you think again!

The concepts of controller, joint controller and processor play a crucial role in the application of GDPR. They determine who is responsible for compliance with different data protection rules and how data subjects can exercise their rights in practice.  The precise meaning of these concepts and the criterion for their correct interpretation is the subject of much confusion. Incorrect interpretation can lead to the wrong allocation of data protection responsibilities leading to disputes when things go wrong. 

Our new workshop, Data Controller, Processor or Joint Controller: What am I?, will help both controllers and processors to understand their responsibilities and liabilities under GDPR and how to structure their relationships. This interactive workshop will explain the key differences between data controllers, joint controllers and data processors and what the roles and responsibilities are for each. By the end of this workshop, delegates will gain the confidence to decide on what an organisation’s role is under GDPR and how to manage the different relationships.

At Act Now we are always keen to hear from information governance professionals. If you have ideas for new workshops, or are interested in running one, please get in touch.