Worldwide: Global Data & Privacy Update - December 2016

Last Updated: 6 December 2016
Article by Mark Williamson and Dean Carrigan

Most Read Contributor in UK, October 2017

Welcome to the December 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 Produces Code on Privacy Notices

The ICO has produced a code of practice advising organisations processing individuals' data on the extent and manner of their privacy notices that are communicated to individuals. The code of practice has been written in light of the GDPR, which will become UK law from mid-2018 and which contains heightened regulation concerning privacy notices. This code has been written to ensure compliance with the new legislation.

The code contains strong guidance to data controllers on what is considered appropriate conduct in the context of its communications to those people whose data it wishes to collect. This includes providing appropriate transparency about what the data will be processed for, giving individuals the appropriate control and choice to make informed decisions, requiring individuals' consent to the processing of their information and alerting individuals to the fact that their data may be shared with other data controllers.

The ICO also recommends that tools such as dashboard and platforms are used by organisations to enable individuals to manage their preferences and to prevent their data being shared where they have a choice, and the code also contains guidance on when and how such privacy notices should be presented.

Click here to view the ICO's code of practice in full.

UK directors to be fined up to £500,000 from Spring 2017

The Government has announced that from Spring 2017, company directors will be liable for fines of up to £500,000 levied by the ICO if found to be in breach of the Privacy and Electronic Communications Regulations. This is an amendment from the previous regime, where only companies were liable for fines and recovery of such fines proved problematic, since many fines that were issued by the ICO were avoided by companies declaring bankruptcy and subsequently trading under a new name. Following this change, the directors themselves will be personally responsible.

This move is among a number of measures the Government has introduced to tighten current data protection rules and has been supported by the Information Commissioner Elizabeth Denham, who has stated 'making directors responsible will stop them ducking away from fines by putting their company into liquidation. It will stop them leaving by the back door as the regulator comes through the front door'.

Click here to view the Government article on this topic.

FCC publishes new rules imposing regulations on broadband providers

The Federal Communications Commission in the US has recently published fresh rules concerning governance of the collection and use of consumer data by internet service providers. Internet service providers must now obtain the consent of the consumer before marketing their sensitive data, and the scope of what is considered sensitive has been extended to cover web browsing and mobile application history.

The new rules have been subject to criticism from industry bodies, on the basis that they impose a greater regulatory burden on broadband providers compared to other companies operating in the digital advertising marketplace.

New provisions for insurer health data processing advised by CoE

The Council of Europe (CoE) has endorsed a recommendation from the Committee of Ministers to the Member States on processing personal health related data in the insurance sphere and has recommended grounds on which processing of such data would be considered lawful.

The Recommendation looks to balance the legitimate interest an insurer has in understanding the risk posed by particular customers with the sensitive nature of individuals' health and genetic data and calls for governments to ensure non-discrimination on the ground of genetic characteristics. The Recommendation has established seven principles which provide grounds for the lawful processing of such data by insurers and the security safeguards for their storage.

Whilst some of the provisions of the Recommendation are a mere repetition of fundamental elements of current general European data protection rules, other provisions go a lot further. For example, the proposed prohibition on the collection of certain health-related personal data from family members of the (future) insured person would change insurers' current practice of asking for such information in the context of applying for certain types of life and health insurance coverage if implemented.

National legislators are now called to review and discuss internally whether their respective legislation should be changed or amended to reflect the Recommendation's proposal.

Article 29 Working Party takes action against Whatsapp and Yahoo

The Article 29 Working Party has written letters to Whatsapp and Yahoo expressing its concerns with Whatsapp's proposed data sharing with Facebook, and Yahoo's 2014 data breach, where more than 500 million users' personal data were stolen, many of which were located in the EU.

The letter to Whatsapp has raised concerns that Whatsapp's Terms of Service and Privacy Policy do not address the data sharing that the company has introduced. It requests that Whatsapp communicates all available information to the Working Party and that it stops the sharing of users' data until the appropriate legal protections are assured.

The letter to Yahoo requests that Yahoo devote significant resources to understand, communicate and address all aspects of its unprecedented data breach, notify the adverse effects to affected data subjects and inform them of any action they need to take as a result of the breach to mitigate the risks to their rights and freedoms. Finally the letter urges Yahoo to co-operate fully with any enquiries made and investigations conducted by independent national DPAs to ensure that there is a complete understanding of the extent of the breach and the remedial actions being taken by Yahoo in relation to it.

Click here and here for letters to the companies.

CJEU rules IP addresses are personal data

The Court of Justice for the European Union (CJEU) has found that an IP address registered by a website operator is personal data, to the extent that identification of the user of the IP address can be determined from it when considered in conjunction with an individual's ISP. This was following a referral from the German Federal Court, which concerned an individual's request for an injunction to prevent Federal German Institutions from registering and storing his IP addresses.

Click here to view the judgement.

ICO Fines Firm sending 7 million spam texts

The financial firm Intelligent Lending, trading as Ocean Finance, which sent 7.7 million spam texts over a six month period offering a new credit card with a major lender, has been fined £130,000 by the Information Commissioner, and been issued an enforcement notice prohibiting the sending of any further texts. The ICO received nearly 2,000 complaints about this issue. Whilst the third party from which it had obtained the names and phone numbers of the individuals concerned had consent to send texts, this consent did not extend to Ocean Finance.

The Head of Enforcement at the ICO, Steve Eckersley, stated that 'company bosses everywhere should sit up and take note of this fine and check their practices are compliant with the law before embarking on marketing campaigns'.

Click here to view the ICO's monthly newsletter.

Clyde & Co LLP publishes article on cyber security threat in Australia

Clyde & Co's Australia team has produced an insight and knowledge article on the risks to companies of a potential cyber-attack and the steps the Australian Government has taken to address cybersecurity and cyber resilience. This article includes advising on the steps that can be taken by companies in the wake of a cyberattack to mitigate the damage caused to the company and to the individuals whose information is subject to the attack.

Click here to view the article in full.

Global Data & Privacy Update - December 2016

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.

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