Worldwide: Global Data & Privacy Update - March 2017

Welcome to the March Global Data & Privacy Update. This update is dedicated to covering the latest legislative developments affecting the way data is managed and protected, as well as reporting on the most recent news governing data breaches and industry developments.

ICO Draft Guidance on Consent requirements within the General Data Protection Regulation ("GDPR")

The ICO has published draft guidance on compliance with the consent provisions in the GDPR. Consent is one basis for the lawful processing of data and the standard set for consent is higher under the GDPR, which comes into force from May 2018.

The guide intends to offer advice on compliance with the consent requirements in practice. As the publication is a draft paper, the ICO are requesting feedback on the guidance provided by 31 March 2017. We plan to submit our views as part of the consultation and encourage all our readers to do the same. If you would like to discuss the paper further please feel free to contact Mark Williamson or Isabel Ost.

Click here to view the ICO Guidance.

Article 29 Working Party and EDPS outline MDL5 concerns

The Article 29 Working Party (WP29) and the European Data Protection Supervisor (EDPS) have raised concerns about the proposed EU Fifth Money Laundering Directive (MLD5) and its potential impact upon individuals' fundamental rights to privacy and data protection.

Under the proposed MLD5 the policy purposes (while not yet clearly defined) may be more expansive than currently under the Money Laundering Directive of countering money laundering and terrorist financing, and where invasive personal data processing is currently permitted strictly within this ambit. The WP29 and EDPS are concerned by the potential expansion of purposes for processing data beyond the current use (for preventing money laundering and terrorist financing), which may reduce data protection safeguards. Also where data collected for one purpose is used for other unrelated purposes, it will be an infringement on the data protection principle of purpose limitation and proportionality.

There are also concerns that MLD5 will widen the access to beneficial ownership information for national authorities to use not just for the most serious of offences, such as counter-terrorism, where high levels of intrusion to individual freedoms are justified, but also for lesser offences, such as facilitating tax obligation enforcement. This could impact upon individuals' rights to privacy and data protection severely.

Click here to view the EDPS Opinion on the proposal for the MLD5.

ICO fines Digitonomy for spam texts without consent

The ICO has issued a penalty of Ł120,000 to Digitonomy Ltd (Digitonomy) under section 55A of the Data Protection Act 1998 for sending spam marketing texts to customers without their required consent. This was a serious contravention of Regulation 22 of the EU Privacy and Electronic Communications Regulations 2003.

Between April 2015 and February 2016, over five million unsolicited marketing texts were received by consumers encouraging them to apply for loans, resulting in 1,464 complaints being made against the company. Under the EU Regulation, companies cannot use electronic marketing unless they have obtained specific consent from the recipients to receive such marketing material. It was found that Digitonomy did not have the proper consent from the recipients, and had failed to undertake appropriate due diligence against the affiliate marketing channels, from which Digitonomy acquired the customers' data, to ensure that the necessary consent had been obtained.

Click here to view the ICO's monetary penalty notice.

Article 29 Working Party approves Google model clauses

The Article 29 Working Party (formed of various EU Data Protection Authorities ("DPAs"), led by the Irish DPA) has confirmed that Google's model contractual clauses for the international transfer of European customers' personal data using G-Suite (formerly Google Apps) and Google Cloud Platform are in line with the EU Data Protection Directive.

The Article 29 Working Party considered Google's model clauses, which are based on the European Commission's model clauses, and confirmed that they meet the requirements for international data transfer out of the EU. In practice, this means that Google's European business customers can rely on the model clauses to transfer personal data out of the EU without any further authorisation.

Click here to view Google's public statement on the above.

Court of Appeal overturns High Court decision on subject access request

The Court of Appeal (CA) has overturned a High Court decision preventing beneficiaries of a Bahamian trust from obtaining information on the trust (to be used in a Bahamian trust dispute) via a subject access request under s7(2) Data Protection Act 1998 (DPA). In doing so, the CA has also ordered Taylor Wessing (TW) to release the information concerning its client, a Bahamian trust company, that had administered the trust. TW had originally refused the release of the information on the grounds of the legal professional privilege exemption under paragraph 10 of Schedule 7 of the DPA.

In reaching its decision, the CA held that: (i) legal professional privilege only applies to documents carrying legal professional privilege for the purposes of English law; (ii) TW could not show satisfactorily that compliance with the subject access request would involve a disproportionate effort on their part to uncover the requested information (proving this required greater justification than an assertion that searching through documents would be difficult); and (iii) the High Court judge should have ordered the release of the information in the first instance, as the material was to be used in Bahamian litigation.

Case: Dawson-Damer and others v Taylor Wessing LLP [2017] EWCA Civ 74

Australia passes new Data Protection legislation

The Australian Parliament passed on 13 February the Privacy Amendment (Notifiable Data Breaches) Act 2017, which amends the Privacy Act 1988, the current Australian data protection legislation, to create provisions requiring organisations to notify the regulator in the event of a data breach. Unlike the draft legislation issued in December 2015, where the notification requirement applied to all breaches that may result in serious harm, the revised wording states that it is only when a breach is likely to result in serious harm that notification is required. There are fears that the introduction of a reasonable person test as part of the determination of whether or not an eligible data breach requiring notification has arisen will cause confusion.

Other key provisions of the Act include: (i) an exemption from notification where remedial action is or has been taken; (ii) a 30-day grace period to allow organisations to evaluate, on discovery of a data breach or when reasonably aware that a breach has occurred, whether or not such a breach is likely to result in serious harm; and (iii) the ability for the Office of the Australian Information Commissioner to apply to the Australian courts in the case of serious breaches by corporate bodies for a maximum civil penalty of AUS $1,800,000. Christie added that "the average cost of a data breach... [is expected to] increase, at a minimum, by a factor of four".

Please click here for a press article on the above.

Japanese Supreme Court dismisses Right To Be Forgotten claim against Google

The Supreme Court of Japan has dismissed an individual's claim of their 'Right to be Forgotten' (RTBF) against Google, in which the individual had sought the removal of various reports relating to his committal of a serious crime. This decision departs from that of Costeja in the European Courts, a case with similar facts to this one, but where the material was ordered to be removed from the search engine. This was on the grounds that the rights of the data subject were held to override not just the economic interest of the search engine but even the interest of the general public in having access to the information.

It was stated in this decision that an individual can demand that a search engine delete a search result, but the search engine would only be required to remove the material if the individual's interest in an article not being in the public domain obviously outweighed the interests achieved through publication. It was held that the individual's interest failed to obviously outweigh the general public interests. This was both because the crime was strongly condemned by society and as such awareness that the individual had committed the crime was in the public's interests, and because search results would only be generated when the individual's name and area where he lived were entered, thus restricting publication.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.