UK: Fireside Chat With Elizabeth Denham At Dentons, London
Last Updated: 2 November 2017

Elizabeth Denham, the UK Information Commissioner, spoke with Nick Graham, who leads the Dentons Privacy and Cyber Security group, at IAPP KnowledgeNet hosted by Dentons last week. The Fireside Chat was attended by more than 170 people and ranged from the DP Bill to Brexit and the GDPR. Elizabeth covered many of the current issues and priorities for the ICO. Here is a summary of the key points:

  • Resource: The ICO acknowledged that it (and everyone else?) is feeling "GDPR battle-worn" and facing resource challenges. It has seen a large increase in volume of work (34% increase in breach notifications; 12% increase in case work) combined with a 30% loss of technical staff in the last six months.
  • Restructure: The ICO has gone through a restructure; in addition to new executive leaders and a new general counsel, the ICO has also introduced a new tech strategist team.
  • Enforcement: A new Regulatory Action Policy will be released for consultation early next year – this should be a good indicator of where the ICO will prioritise enforcement actions.
  • Strategy: The ICO has developed a new Information Rights Strategic Plan which sets out its priorities. The main aim moving forward will be to make strategic files a higher priority as these files make a difference on policy. One strategic file the ICO is currently investigating is the impact of social media and analytics on voting.
  • New office: The ICO has opened a London office so that it can be close to parliament and the government during the GDPR and Brexit roll-out. The Parliament and Government Affairs team is based in London.
  • New staff: The ICO wants to hire and retain more staff in preparation for the GDPR. It is also interested in receiving secondment opportunities.
  • Transition to GDPR: Confirmation that there will not be a "grace period" for enforcement post 25 May 2018 but that the ICO will continue to apply a "proportionate, reasonable and risk-based" approach to enforcement. The ICO will look for evidence of a compliance-building programme; not expecting perfection from day one but text has been available for two years so companies should not expect a free ride. If there is a serious breach, the ICO will look at what has been done to prevent this.
  • Breach notification: 72-hour breach notification period will mean that initial notifications are not expected to be "full" – initial headlines only – and notifications will be an iterative process. The ICO is operating a "trial" breach notifications telephone hotline to aid it in assessing what internal resource it will need in order to deal with the increased volume of breach notifications.
  • WP29: The ICO has taken a lead on various WP29 guidance and expects to "anglicise" opinions once they are finalised – query whether this will include application of ICO "pragmatism" to WP29 position?
  • Global role: The ICO wants to "continue [its] influence as long as [it] possibly can and beyond." Elizabeth acknowledged that the current relationship with the EU was one of uncharted waters and that a country has never left the EU but wanted to continue to influence.
  • Regulatory sandbox: The ICO is proactively developing a regulatory "sandbox" model to allow businesses to test technologies/products without form of enforcement. Looking at the model currently deployed by the FCA, she acknowledged that "in order to be agile and tech savvy we need to have a place for companies to test their ideas".
  • Fees are coming: The ICO is hoping that legislation is introduced to support the new fee structure. Revenue is required to fund the ICO.
  • DP Bill: Elizabeth acknowledged that many people are frustrated with the UK DP Bill but explained that, in her view, it was a complicated piece of law (trying to cover lots of ground) and is a little "rushed". The Bill was drafted for lawyers and experts, not the public. The best approach would be to break it down and work out what sections are most relevant to the party reading it.
  • Privacy seals: The ICO is leading on WP29 guidance with draft due early 2018. The ICO plan for 2018/2019 is an accountability certification/governance certification, looking at practice adopted in BCRs/CBPRs /Canada and Australia regarding governance and accountability. The ICO sees this as the common thread that allows international firms to link differing privacy regimes together.
  • BCRs: The ICO still has a backlog and additional resource is being applied to it. But 85% of all BCR applications across EU are made through the ICO. The ICO is "still in the business" of BCRs. In due course, it expects there to be further "templates" to assist in speeding up the process but there is no indication of timing on this.
  • Children: As soon as the staffing issue is resolved, this area will receive more attention but right now the focus is on the wider GDPR implications. 
  • Outsourcing DPOs: The ICO has no issues with this approach, provided that an organisation is compliant with the GDPR.

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