UK: Data Protection Update - November 2017

Last Updated: 5 December 2017
Article by Jonathan Kirsop and Alison Kenney

Welcome to the November 2017 edition of our Data Protection update, our monthly bulletin on key developments in data protection law. As always, please do let us know if you have any feedback or suggestions for future editions.

Data protection

Less than six months to go.... the GDPR clock is ticking.....

According to a recent survey, 92% of European businesses (not to mention 75% of UK law firms!) are unprepared for the entry into force of the General Data Protection Regulation (GDPR).

Statistics aside, the clock is ticking for all business to finalise their plans for the implementation of the GDPR in May 2018. If you are still wondering where to start our GDPR Countdown (found here) provides an essential eight point data protection checklist which will go some way towards helping businesses take steps to ensure compliance with the GDPR.

If you need further advice or assistance in preparing for the GDPR, do get in touch.

House of Lords notes the complexity of Data Protection Bill

In our October bulletin ( found here) we reported that the Data Protection Bill's second reading has taken place in the House of Lords.

Lord Ashton of Hyde and Baroness Williams of Trafford have responded to the points raised during the debate at the second reading. The pair published a letter that addresses 12 points, including the bill's complexity, the rights of data subjects and assistance for data controllers; directing peers to guidance prepared by the ICO and law firms on the rights and obligations of data controllers and data subjects.

During the second reading, the Lords queried the issue of data controllers who spuriously claim that a subject access request is "manifestly unfounded or excessive". The position clarified in the letter is that this is a high bar which the ICO will scrutinise heavily to stop controllers from preventing data subjects exercising their rights.

The letter also emphasises that there is no distinction between personal data collected before the new regime comes into force and that which is collected after; both sets should be treated in the same way and all personal data will be subject to the provisions of the new law. Controllers already have, and shall continue to have, an obligation to ensure personal data is held for a specified purpose, is up to date and is not kept for longer than is necessary for that purpose.

To read the letter, please click here.

House of Lords propose a data ethics code of practice

Lord Stevenson of Balmacara has proposed that within six months of passing the Data Protection Bill into law, the Information Commissioner's Office (ICO) should prepare an ethics code of practice for data controllers.

He suggested that in issuing the code the ICO could set out the moral and ethical issues around data processing; and could:

  • include a duty of care from controllers and processors to data subjects, and define best practice;
  • consider, among other things, the risks and limitations of new technologies;
  • provide guidance on default privacy settings, data minimisation standards, presentation and language of terms and conditions, transparency, data sharing and accuracy; and
  • empower the ICO to impose fines for non-compliance with the code.

To read more, please click here.

Government wants unhindered and uninterrupted flows of data between the UK and the EU post-Brexit

The UK Government has reiterated its plans to establish an agreement with the remainder of the EU Member States that will allow personal data to flow across EU borders unhindered post-Brexit.

The UK Government, in responding to the report titled "Brexit: the EU data protection package", stated that it is committed to ensuring that the UK remains a global leader on data protection after Brexit and re-iterated that the UK is seeking an enhanced mechanism that builds on what the existing model of adequacy provides for third countries.

The Government went on to confirm that it will continue to align its data protection framework with the EU to forge a strong future partnership and ensure continued law enforcement and security cooperation, recognising the importance of sharing personal data for commercial purposes and wider cooperation, including to help in the fight against crime and terrorism.

Those comments build on the contents of a 'future partnership' paper the Government published in August which called on the EU to recognise the alignment of the UK's data protection framework before the UK leaves the EU ( as reported in our August bulletin here).

To read the Government's response letter please click here.

Article 29 Working Party (WP29) sends warning to WhatsApp

The WP29 sent its first warning to WhatsApp in October 2016 outlining concerns in relation to WhatsApp's updated terms of use and privacy policy; the information provided to users at that time, and the validity of users' consent.

The WP29 has since sent a further letter to WhatsApp dated 24 October 2017 indicating its serious concerns that a satisfactory resolution to the issues raised in their first warning has not been reached. The WP29 questions the effectiveness of the new "Notice for EU users" published by WhatsApp on 16 August 2017 which is found amongst the Frequently Asked Questions on its website. Although the notice provides additional information regarding the nature and purposes of data sharing by WhatsApp with the Facebook family of companies, WP29 does not consider that it addresses the issues of WhatsApp's non-compliance with current data protection law.

Another serious concern is that users' consent is not freely given. WhatsApp effectively adopted an approach in which users are required to signal their consent to the data sharing and, failing to do so means they are unable to avail themselves of WhatsApp's messaging service. Currently, consent must be "freely given, clear, specific, informed and unambiguous". Under the GDPR, valid consent will be even harder to demonstrate and options offered by WhatsApp will need to be sufficiently granular to ensure consent is validly obtained. WP29 also calls on WhatsApp to provide controls allowing for consent to be easily withdrawn as required by the GDPR.

To read the Letter of the Chair of the WP29 to WhatsApp, please click here.

Cyber Security

Uber suffered and concealed a huge data breach

This month Uber disclosed that it suffered a large scale global data breach in October 2016, in which hackers were able to download 57 million names, email addresses and mobile phone numbers including 600,000 drivers' names and licence details.

The company concealed the breach for more than a year after paying the hackers $100,000 to delete the data and keep the breach quiet. It has been reported that at least six national authorities are investigating the taxi company breach of users' and drivers' data.

From a UK and EU data protection perspective, it is worth noting that a cover-up of a cyber breach in itself is not an offence, as there is currently no statutory obligation to notify the ICO of a breach. This will of course change next year post-implementation of the GDPR, where such a breach would require notification to the relevant regulators within 72 hours of Uber becoming aware of the breach.

In terms of the gravity of the breach, and the possible fines that could be imposed, a failure to have adequate security to protect against a breach of this kind is likely to be considered a serious breach. The ICO could consider this to have been exacerbated by the failure to report this which meant that individuals who might have been affected were been unable to take steps to mitigate the effects of the hack.

Building giant Jewson suffers cyber-attack

Builders merchant Jewson has confirmed in writing to customers that their personal data may have been stolen in a cyber break-in that occurred late this summer, informing them that names, locations, billing addresses, passwords, emails, phone numbers, payment details, card expiry dates and CVV numbers "may" have fallen into the hands of an unauthorised person.

The company has responded by taking its store offline. Up to 2000 customers who used the Jewson Direct online store between 23 August 2017 and 3 November 2017 could have been affected.

The Paradise Papers – The world's second largest data leak

On 5 November, the International Consortium of Investigative Journalists (ICIJ) released 13.4 million files, which are now known as the 'Paradise Papers'. The leaked files, which have come from offshore law firm Appleby Global, shine a light on the offshore world. The Paradise Papers identify those who have used law firms, trust companies and intermediaries to assist in the setting up and maintenance of offshore investment structures.

Interestingly, not many media outlets have commented on the fact that a firm's cyber security has been compromised, and data has been leaked.

However, news like this should serve as a warning to companies, ahead of the GDPR, when there will be a requirement to notify the ICO and also consider whether to the breach should be communicated to data subjects (unless the breach is unlikely to result in a high risk to the rights and freedoms of those data subjects; the controller could show it had adequate protection in place at the time of the breach; or a disclosure to data subjects would involve disproportionate effort). Businesses should start reviewing their IT security immediately in order to assess the risks of their customer and staff information from being leaked.

Cyber Security

Warning for employees after charity worker prosecuted for data protection offences

People working with personal information have been warned they must obey data protection laws, after a charity worker was prosecuted for making his own copies of sensitive personal data.

Robert Morrisey (RM) sent spreadsheets containing the information of vulnerable clients to his personal email address without the knowledge of his employer, the data controller.

RM sent 11 emails from his work email account earlier this year which contained the sensitive personal data of 183 people, three of whom were children. Additional investigation showed that he had done a similar exercise the year before.

RM admitted unlawfully obtaining personal data in breach of Section 55 of the Data Protection Act 1998. He was given a conditional discharge for two years and was also ordered to pay prosecution costs of £1,845.25, as well as a victim surcharge of £15.

Verso Group data broker fined by ICO

On 2 November 2017, Verso Group (UK) limited was fined £80,000 by the ICO for a serious and deliberate contravention of the first data protection principle under the Data Protection Act 1998 to process personal data "fairly and lawfully".

Verso Group (UK) Limited are a data brokering company that supplies personal data to lead generating companies for direct marketing purposes.

An investigation by the ICO found that the company had supplied personal data for direct marketing purposes to Prodial Ltd and to EMC Advisory Services Ltd, who have both received large fines for making unsolicited nuisance calls. The company's practices spanned a number of years and the company did not ensure that the data it was supplying to third parties was provided with the individuals' consent.

To read the Monetary Penalty Notice, please click here.

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 Mondaq.com.

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

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
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 you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (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 www.mondaq.com

    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 Mondaq.com’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.

    Disclaimer

    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.

    Registration

    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.

    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 unsubscribe@mondaq.com 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.

    Cookies

    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.

    Links

    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.

    Mail-A-Friend

    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.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    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 webmaster@mondaq.com.

    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 EditorialAdvisor@mondaq.com.

    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 enquiries@mondaq.com.

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

    By clicking Register you state you have read and agree to our Terms and Conditions