Welcome to our quarterly Data and Privacy eBulletin in which we reflect on some of the key developments since February 2017.
First GDPR guidelines from the Article 29 working party (Article 29WP) formalised
The Article 29WP (the group of European data regulators) has adopted three final guidance notes to assist in the lead up to GDPR implementation on 25 May 2018:
- Guidance is provided on the right to data portability and data controllers' obligations to provide personal data to data subjects.
- Guidelines on Data Protection Officers (DPOs) will be particularly useful to those organisations which will be required to appoint a DPO under the new regime and those who choose to do so on a voluntary basis.
- Guidance on the Lead Supervisory Authority (LSA) is intended to assist data controllers and processors in identifying the LSA where cross-border processing of personal data occurs.
The Article 29WP has also published draft guidelines for consultation on Data Protection Impact Assessments (DPIA), which will be mandatory under the GDPR where processing is likely to result in a high risk to the rights of individuals.
Cleansing your databases in preparation for the GDPR – proceed with caution
Flybe was fined £70,000 for sending emails asking "Are your details correct?" to customers who had specifically opted out of direct marketing. Flybe's argument that the email was not a marketing communication but a service email to ensure that the data was up to date in preparation for the GDPR was rather ruined by the fact that the email also invited the individuals to enter a competition, which rendered the email a marketing communication sent in breach of the Privacy and Electronic Communications Regulations.
Honda was fined £13,000 for sending emails entitled "Would you like to hear from Honda?" to customers in respect of whom, due to a technical glitch, they did not know whether they had opted-in or -out of receiving direct marketing communications.
In both instances, the ICO was clear that contacting customers to ask for consent for future marketing as part of a database cleansing exercise is still marketing and not just a service email, stating "businesses must understand they can't break one law to get ready for another".
Government 'calls for views' on GDPR derogations
The GDPR provides member states with flexibility to exercise discretion over how certain provisions will apply by way of derogations. Areas of the GPDR that provide for flexibility include, for example, the age required for parental consent to processing of children's personal data for online services, and the restrictions (or exemptions) from the rights of data subjects.
In April the Department for Culture, Media and Sports issued its 'calls for views' on the derogations, seeking views on, if and how the government should implement the defined flexibilities permitted under the GDPR. The deadline for submitting responses to the consultation was 10 May 2017. We now eagerly await the publication of the responses and the government's intentions for the all important derogations.
ICO releases draft guidance on GDPR consent
The ICO has released and consulted on its draft guidance on 'consent' under the GDPR, and makes clear that GDPR consent requires clear, active, granular opt-in methods, good documented records of consent collection, and easily-accessible, simple methods of withdrawing consent. Consent should no longer be a static, one-off choice, but fluid and actively managed. Final guidance is expected later this year. Some key issues addressed by the draft guidance:
- No grandfathering of DPA consents. Fresh consent must be obtained for personal data collected where consent was obtained prior to 25 May 2018 which does not meet the GDPR standard.
- When is consent appropriate as a grounds of processing? Relying on consent will only be appropriate if: the individual actually has a choice about the processing and has the ability to exercise control; there is no imbalance of power; and the consent fulfils all of the GDPR requirements.
- Unambiguous v
explicit
- 'Unambiguous consent' (required for processing of ordinary personal data) requires deliberate action of some form such as an opt-in box, signing a consent statement, verbal confirmation or switching technical settings away from the default settings.
- 'Explicit consent' (required for example when processing sensitive personal data) must be expressly confirmed through the use of words such as "I consent to" or "I agree that".
- How long does consent last? The duration of consent will generally be dependent on context and an individual's expectations. Consent should usually be refreshed every two years unless there is a specific justification for a longer period. Parental consents should always expire when a child reaches the age at which they can consent themselves.
ICO discussion paper on profiling and automated decision making
The ICO has released a discussion paper and sought feedback on the new profiling provisions in the GDPR, which are stricter and place more obligations on data controllers. Some of the key areas for discussion are the right to object to automated decision making, data minimisation and direct marketing rules.
ICO's fundraising investigation finishes
The ICO has finally drawn a line under its investigation into charity fundraising practices, concluding by issuing fines totalling £138,000 to a further 11 charities for contraventions of data protection. The ICO found the charities had:
- wealth-screened millions of donors in order to target likely repeat-donors;
- traded donors' personal details amongst themselves and with other organisations; and
- tracked down lapsed donors by using third parties and out-of-date information.
The Charity Commission has confirmed that it has opened compliance cases into all of the 13 charities subject to the ICO fines to assess whether the trustees had acted in accordance with their charity law duties. Trustees are expected to understand and comply with data protection law.
The right to remain published?
There has been a raft of recent cases examining the interaction between data protection and the right to reputation, meaning that after nearly two decades and shortly before the end if its shelf-life, the Data Protection Act 1998 and its special protection for journalism has become a hot topic and seen some welcome judicial scrutiny.
In December 2016 Bloomberg LP published an article about a company being under criminal investigation and linked an individual (ZXC), who was a director of the company, by name to the investigation. The information contained in the article had been leaked to Bloomberg by a law enforcement authority and was highly confidential. ZXC brought interim court proceedings to have the article taken down from the Bloomberg website, on the basis that the publication was a misuse of his private information and that Bloomberg's continued processing of his personal data caused him unwarranted and substantial damage and distress.
The High Court ruled in favour of Bloomberg's right to continue publishing the article until trial, accepting its argument that it reasonably believed that the publication was in the public interest under s.32 DPA because the article was a serious piece of journalism about bribery, fraud and corruption. The story had been widely reported by Bloomberg and other news outlets for three years prior to ZXC's complaint and was already in the public domain – albeit that the previous publications had not mentioned ZXC by name; and ZXC's case was weakened as he had not attempted to stop the publication of the earlier articles and he took nine days to complain about this article. A full examination of whether or not that defence will succeed will now take place at trial later this year.
However, in ERY v Associated, the Court prevented publication of the fact of a criminal investigation and upheld the principle that a person suspected of a crime has a reasonable expectation of privacy during the investigation phase and prior to any charge. The Court was also reminded that an allegation of the commission of any offence is sensitive personal data. The different outcomes of these two similar cases show how fact-specific the journalism public interest defence will be.
Data protection rights have been found to add to an individual's privacy rights and therefore a person can legitimately claim that he has been both libelled and harmed by unlawful data processing. The Court of Appeal in HH Prince Moulay Hicham Ben Abdallah Al Alaoui of Morocco v Elaph Publishing said that "the different causes of action are directed to protecting different aspects of the right to private life: the relevant provisions of the DPA include the aim of protection from being subjected unfairly and unlawfully to distress."
Then last month the Court gave its decision on a major challenge to the compatibility of the provision of the DPA which allows a halt to be brought to court cases about unpublished journalistic material, with the terms of the underlying EU Directive (95/46 EC) in Stunt v Associated. In a very significant decision, the Court agreed that the defendant could obtain a stay of the claim (under s.32(4)) because it was holding Mr Stunt's personal data with a view to publish it as 'news'. It was the very first time this media-friendly provision had been analysed by the Court – just over one year before it will be repealed. It remains to be seen whether a similar protection will be introduced under GDPR.
Lessons learnt from recent ICO enforcement decisions
Do you have consent to call? Keurboom Limited has been issued with a record fine of £400,000 for making over 99.5 million automated calls about PPI compensation and road traffic accident compensation without consent. Calls were made during unsociable hours and the company hid its identity to make it harder for people to complain.
Empty unwanted furniture. Norfolk County Council has been fined £60,000 for leaving files that included sensitive information about children in a cabinet sent to a second hand shop.
Use appropriate delivery methods. Greater Manchester Police has been fined £150,000 after three DVDs containing footage of interviews with victims of violent or sexual crimes were lost in the post.
Personal liability. An individual was prosecuted in the Magistrates' Court for unlawfully obtaining personal data. The individual, who at the time worked at a recruitment agency, emailed the personal data of approximately 500 candidates to his personal email address to help set up a new rival recruitment company. The data included contact details, candidate files consisting of identification and qualification documents, references, DBS checks, as well as a large number of CVs.
And finally
The countdown to GDPR begins. With just one year remaining before the implementation of GDPR in May 2018, we are helping many clients with their preparations, from reviewing privacy policies to full data audits.
Originally published 16 May 2017
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.
