Google v CNIL and the Right to be Forgotten

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24th September 2019 is most likely to be remembered as the day the UK Supreme Court unanimously ruled that the Prime Minister, Boris Johnson, had unlawfully prorogued Parliament. As media attention focussed on the constitutional implications of this landmark judgment, you might be forgiven for not noticing another very important legal judgment delivered by the Court of Justice of the European Union (CJEU) in (Google LLC v CNIL (Case C-507/17). In contrast to the Prime Minister, the case went in favour of Google and provided clarification regarding the extent of its obligations to erase personal data under Article 17 of GDPR, the so called “Right to be Forgotten.”

This decision is, in many senses, a continuation of the Court’s landmark judgment in 2014 (Google v Spain (Case C-131/12) in which the CJEU ruled that Google, as a Data Controller, had to give effect to the data protection right of erasure provided in Article 12(b) and the right of objection under Article 14 of the EU Data Protection Directive 1995 (the 1995 Directive). Readers will know that the Directive has been repealed and replaced by the GDPR. Although, at the time of the case the operative law was the Directive, the Court decided that it would consider the questions raised in the light of both the Directive and the GDPR to ensure that its answers would be of relevance now that the GDPR is in force.

The Right to be Forgotten (or the right to erasure) is now found in Article 17 and the right to object to processing in Article 21 of GDPR. In Google v Spain the Court held that where a search engine operator received a request under Article 12 (b) of the 1995 Directive then it would have to take steps to remove those links to third party web sites that were displayed in a list in a search conducted against the Data Subject’s name (provided the conditions of Article 12 (b) were met). This meant that a Data Subject would have the right to request Google to ‘de-reference’ certain links to information held on third party web sites. This has been referred to as the “right to
de-referencing”. This right was not absolute.

Turning to the corresponding provisions of the GDPR (Article 17), the Court also notes that the Right to be Forgotten under Article 17 (3) of the GDPR is also not absolute.
A search engine operator may refuse the request if one of the conditions in Article 17(3) applies. Article 17 (3) specifically states that the Right to be Forgotten does not apply where processing is necessary for exercising the right of freedom of expression and information. Therefore consideration needs to be given to the specific circumstances of the case, the sensitivity of the personal data, and the interests of the public in having that information, which may vary depending on the public role played by the Data Subject.

What happened in the latest case?

In 2015 the French Data Protection Authority (the Commission National De l’informatique Et Des Libertés) instructed Google that when it received a request from a person to remove links to web pages about them, from the list of results displayed following a search conducted on the basis of that person’s name, it must apply that removal to all its search engine’s domain name extensions.

Google responded by removing the links in question but only from the results displayed following searches conducted from the Google domain names in the Member States. It also implemented so called ‘geo-blocking’ measures that meant if an internet user in the EU switched to a non-EU version of Google it would automatically be re-routed to an EU version of Google (which would not display the ‘disputed’ links). Despite this the French Data Protection Authority, using its powers under the French law that implemented the Data Protection Directive, imposed a fine of €100,000 on Google. Google challenged this decision. The French Court considered that the case raised difficult legal issues regarding the interpretation of the Right to be Forgotten and the territorial scope of the Data Controller’s obligation.

The Issues

The issue in this case was about what steps Google had to take in response to a request to de-reference links. Did it have to ensure that the link was removed from all the domain names used by its search engine so that the links no longer appear, irrespective of the place where the search is initiated or whether it is conducted from a place outside the European Union? In other words the issue was about the territorial scope of Google’s obligations to de-reference links when a Data Subject makes a valid request under Article 17.

The Court deals with this as follows:

  • It begins by stating that the objective of the GDPR is to provide a high level of protection of personal data throughout the European Union, and a
    de-referencing of all versions of a such engine would achieve that objective.
  • But it recognises the ‘ubiquitous’ nature of the internet that is global in reach and without borders.
  • And it also acknowledges that not all States that host the Google search engine recognise the right of de-referencing.
  • Article 17 (3) strikes a balance between the rights of the Data Subject and the right of information, but does not strike such a balance as regards the scope of de-referencing outside the EU.
  • There is nothing in Article 17 of the GDPR that suggests that the EU intended that the scope of the Right to be Forgotten would extend beyond the territory of the Member States of the EU.
  • Consequently there is no obligation under EU Law, for a search engine operator, who grants a request for de-referencing, under Article 17, to carry out a de-referencing on all the versions of its search engine. It is only required to implement de-referencing in all the EU Member State versions of its search engine.
  • However, where necessary the search engine operator is obliged to use measures which prevent, or at the very least, seriously discourage internet users in the EU from gaining access to the ‘offending’ links in question.

The CJEU then referred the matter back to the French Courts for them to determine whether the measures taken by Google (the geo-blocking measures) or proposed by Google meet these requirements. However, what is clear is that the ‘Right to be Forgotten’ in the context of Google searches has its limits. The extent to which Google, and other search engine operators, can prevent or discourage determined internet users from gaining access to ‘de-referenced’ personal data remains to be seen.

 

More on these and other developments in our GDPR update workshop presented by Ibrahim Hasan. Looking for a GDPR qualification? Our practitioner certificate is the best option.

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Cyber Security Month is Here!

Cyber security concept, authentication screen on computer, confidential business data

October is European Cyber Security Month. This is the EU’s annual awareness campaign that takes place each October across Europe. The aim is to raise awareness of cybersecurity threats, promote cybersecurity among citizens and organisations; and provide resources for online protection, through education and sharing of good practice.

Every single day the cyber security landscape becomes more complicated. Criminals are continually inventing new ways to carry out cyber-attacks. A Freedom of Information  request by insurance broker Gallagher, recently revealed that UK councils were fending off an average of 800 cyber attacks per hour.

Organisations that do not take appropriate action are at grave risk of business disruption, reputational damage and regulatory action. In July we saw the Information Commissioner’s Office (ICO) signal its intention to use its powers to issue Monetary Penalty Notices (fines) under the General Data Protection Regulation (GDPR). Two Notices of Intent were issued against British Airways and Marriot International respectively.  Both relate to cyber security incidents but for different reasons and amounts. (More here.)

Cyber security needs to become a top priority for organisations and individuals. Training and awareness is crucial. The National Cyber Security Centre publishes a regular report on cyber incident trends in the UK with guidance on how to defend against and recover from them. Act Now is running a series of  Cyber Security workshops led by cyber expert, Steven Cockcroft. The first one was in London last week and attracted delegates from both the public and private sectors. Habib Khatib, Head of Operations at Talk Direct Talk Direct (Leeds) Ltd, said:

“This was an excellent workshop which really opened my eyes to the threats that organisations face from cyber criminals. Steve’s expert knowledge will help me to implement a cyber action plan within my company.”

To celebrate Cyber Security month, all new delegates booking on a Cyber Security workshop will received a discount of 10% if they quote the reference “OCTOBER10%”. This offer applies until 11.59pm on 31st October 2019. A day to remember for more than one reason!

More on these and other developments in our GDPR update workshop presented by Ibrahim Hasan. Looking for a GDPR qualification? Our practitioner certificate is the best option.

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Records Management in Scottish Public Authorities is Changing

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The Public Records (Scotland) Act 2011 (PRSA 2011) requires public bodies in Scotland to develop a Records Management Plan and submit it for the approval of the Keeper of the Records of Scotland. Many of these plans, usually approved on a five year basis, are now approaching the time when they will need to be revised and put through the approval process once again. Moreover, the Keeper’s team have been actively revising their “Model Plan” and will be expecting more from authorities on the submission of their new plans over the next couple of years.

Background

The PRSA 2011 received Royal Assent on 20 April 2011, aiming to fill a gap in information governance which had long existed. Although there had been some sector specific records requirements there was no overall legislative framework guiding the creation, management or retention of information in the Scottish public sector.

The Act came in on the back of the 2007 Shaw Report which blamed poor record keeping for many of the difficulties faced by former residents of residential schools and children’s homes. The Scottish Government took  a broad view of the implications of Shaw; this in turn led to the PRSA covering a broad range of named public authorities including the Scottish Government and Parliament, local authorities, NHS, police and the courts.

Despite concerns, strongly expressed at the time by COSLA among others, that the Act would present yet another onerous burden during a period of particularly harsh austerity, it is probably fair to say that the PRSA has been a success, giving Scotland a solid statutory basis for its record keeping for the first time.

Records Management Plans

The core of the Act is the requirement to develop and maintain a Records Management Plan. This, in theory, can take any form but in practice authorities have tended to closely follow the Keeper’s “Model” comprising (originally) 14 elements:

  1. Senior management responsibility 
  2. Records manager responsibility 
  3. Records management policy statement 
  4. Business classification 
  5. Retention schedules 
  6. Destruction arrangements 
  7. Archiving and transfer arrangements 
  8. Information security 
  9. Data protection 
  10. Business continuity and vital records
  11. Audit trail 
  12. Competency framework for records management staff 
  13. Assessment and review 
  14. Shared information

Changes 

One significant change to the way that the Keeper will be assessing authorities’ Records Management Plans is that there is now an “Element 15” in the Model Plan, covering third party records. S2 and S3 of the Public Records (Scotland) Act always defined the scope of the legislation broadly so as to cover the records of external agencies carrying out functions on behalf of the public authority, but that is now going to be more explicitly defined and the Keeper will expect to see evidence of policies and procedures under this “Element 15”.

The Keeper is currently undertaking a review of these requirements so it is as yet unclear exactly what will be required. The issue was covered in some detail at the Stakeholders’ forums which the Keeper hosted last year, and there is some guidance and model contractual clauses available from the National Records of Scotland, and from the Scottish Council on Archives and Quality Scotland.

Another significant change in the Keeper’s approach to what will be required from Records Management Plans is a general refocussing on data protection. This had always featured in the Model Plan with element 9 dedicated to the appropriate management of personal data but now data protection runs through the Keeper’s guidance like the writing through a stick of rock. As well as beefing up element 9, each section of the Keeper’s guidance now includes a data protection theme as an example of good practice.

The scope of the PRSA continues to broaden. The Keeper is currently going through the approval process of the Integrated Joint Boards, and (as with Freedom of Information?) there will be pressure to extend the list of bodies covered by the Act. The position of Trusts and some other arms-length authorities remains unclear but all organisations of a public nature would be well advised to get up to speed with the requirements of the Public Records (Scotland) Act 2011.

Throughout the process of the passage of the Bill, the Keeper always made a commitment to use the carrot rather than the stick. This has worked well, with the very helpful team at the NRS providing support and guidance on a range of records issues. As the records environment matures, however, and as more is expected of authorities, might we see a more robust approach from the regulator? In retrospect, some of the early schemes which the Keeper approved now look somewhat thin; it may be unlikely that these would have passed had they been submitted today.

Act Now has arranged a series of webinars and full day workshops on the themes raised by the developments within the PRSA. Among other issues, we will be looking at:

  • Records Management Policies. Some authorities conflate “policy” and “Plan”.
    I’d suggest a clear separation, with the Policy simply summarising the case for records management, allocating responsibilities, defining terms and setting out key principles. This element of the plan can also be used to include area-specific policies and procedures which perhaps don’t fit neatly elsewhere.
  • We’ll consider the standards and resources available. What are the standards that you need to know about? In developing or amending your plan, how far can you rely on off-the-shelf resources such as business classification schemes and retention schedules? What do you have to do to make these really work for you?
  • The Keeper has a self-review mechanism for already established Records Management Plans. The “Progress Update Review” mechanism is available and the Keeper has suggested that completing this process will delay the requirement for a full resubmission of your Plan. But what factors should be considered in deciding when to use the PUR and when to complete a full resubmission? 
  • Links to other relevant legislation. In particular, the GDPR, the Data Protection Act 2018 and the Freedom of Information (Scotland) Act 2004. As noted above, the start of the review of the model scheme was at the same time as the implementation of the GDPR and this seems to have very much focussed the Keeper’s attention on data protection. What will authorities need to do to ensure that their RMPs are up to speed with the new DP requirements?
  • Electronic Records Management. In theory, records principles are blind to the media by which the information is created, stored and managed. In practice, however, the Records Management Plan can be an excellent focus to develop and promote policies and practical guidance which relates specifically to information in alternative media.
  • Getting “buy in”. We will consider the best ways to get support for the Records Management Plan within your organisation. It is important that you are able to show the benefits of good records management – and not just in terms of statutory compliance or improved efficiency. By developing a culture of regarding information as a corporate asset you be able to demonstrate that records management is vital in evidencing the rights and responsibilities of the organisation and in maintaining a high quality corporate memory through the development of a proper archive service. 
  • Making it real. The RMP should not just be a paper exercise but should be a functioning set of tools which ensure that the organisation derives maximum value from its information resources. To be of real value, the Plan needs to be embedded throughout the organisation, rather than just a neat stack of policies on a corner of the Chief Executive’s desk. 

Craig Geddes is a qualified archivist and records manager, with 28 years’ experience working across the range of information governance activities. He has recently joined the Act Now team to deliver freedom of information and records management courses in Scotland

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Information Governance Experts Join the Act Now Team

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(From Left to Right: Steven Cockcroft, Craig Geddes, Barry Moult.)

Act Now Training is pleased to announce that three new highly regarded information governance experts have joined its team of consultants.

Cyber security is one of the Information Commissioner’s regulatory priorities for the coming year. This is not surprising when you consider the recent Notices of Intent (to fine) issued by the ICO. We are developing a range of cyber security courses for the coming year. First off we have launched an Introduction to Cyber Security workshop led by our new consultant Steven Cockcroft.

Steven holds accredited trainer status from the British Computer Society, PECB and APMG. He is also accredited under the GCHQ Certified Trainer scheme, delivering training in the areas of Cyber Security, Information Security, Data Protection, Business Continuity Management, Audit, Risk Management and Business Continuity Management. Steven has assisted over 30 organisations to become certified to international best practice information security frameworks including the UK Government Cyber Essentials Scheme, ISO 27001 and ISO 22301.

Act Now has been running a full programme of information governance workshops in Scotland for many years. We have boosted our team of Scottish consultants by engaging Craig Geddes who is a qualified archivist and records manager, with 28 years of experience working across the range of information governance activities. He has worked for several Scottish local authorities as Archivist, Records Manager, and Senior Information and Improvement Officer. Craig has developed and delivered training on records management, freedom of information and data protection for a number of years, and is an engaging and entertaining speaker. Craig will help deliver our current Scottish courses, both in house and external, and develop new ones such as the recently launched Public Records (Scotland) Act Now workshop.

Act Now’s portfolio of clients includes many health organisations. With a view to delivering more health focused information governance courses, Barry Moult has joined our team. Barry is a well know IG expert with many years of experience working with and advising NHS organisations. He founded and has chaired the Eastern Region IG Forum since 2003. Until August 2018, Barry was the Chair of the NHS National Strategical Information Governance Network (SIGN) group and continues to sit on the NHS GDPR working group. Prior to that, he was Head of IG and Health Records at two large NHS Acute Trusts and was recently on a secondment to a local STP looking at information sharing and GDPR for Health and Social Care.

Barry will be delivering our health focused workshops on GDPR and the role of SIROs. Barry has also developed a new workshop for Caldicott Guardians to help them understand and apply the Caldicott Principles and the common law duty of confidentiality in a Health and Social Care setting. He will also look at the legislative requirements (e.g. GDPR) how they apply to patients’ records and what to consider when making moral and ethical decisions. There will also be discussion around how the Caldicott Guardian interacts with the Information Governance Lead, the Data Protection Officer and the Senior Information Risk Owner (SIRO).

The latest recruits boost the number of Act Now consultants to thirteen. Ibrahim Hasan, solicitor and director of Act Now Training,  said:

“I am pleased that Steven, Craig and Barry have joined our wonderful team of consultants who all have a reputation for explaining difficult subjects in a simple jargon-free way. Their knowledge of information rights coupled with real world experience will help us expand our services and deliver even more courses to our rapidly expanding client base.”

Act Now Training is now one of the largest information governance training and consultancy companies in the UK with over 17 years of experience in the sector.  Our trainers are available to deliver customised in house training, health checks and audits. Please read the testimonials from satisfied clients and get in touch for a quote.

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GDPR Subject Access Time Limits Reconsidered

Keeping paper records on the shelves.

Just like its predecessor (DPA 2018), the General Data Protection Regulation (GDPR) gives Data Subjects a right to make a Subject Access Request (SAR) to a Data Controller. This means that they can obtain:

  • Confirmation that their data is being processed
  • Access to their personal data
  • Other supplementary information

The supplementary information mentioned above is the same as under section 7 of the DPA (e.g. information about the source and recipients of the data) but now also includes, amongst other things, details of international transfers, other Data Subject rights, the right to lodge a complaint with the ICO and the envisaged retention period for the data.

Time Limit

The DPA allowed Data Controllers 40 calendar days to respond to a SAR. Under GDPR Article 12, the requested information must be provided “without undue delay and in any event within one month of receipt of the request”. This can be extended by a further two months where the request is complex or where there are numerous requests. If this is the case, the Data Subject must be contacted within one month of the receipt of the request with an explanation of why the extension is necessary.

When does the one month to respond start from?

Previously the ICO guidance stated that the day after receipt counted as ‘day one’. This has now been revised following a Court of Justice of the European Union (CJEU) ruling.
It says that Data Controllers should calculate the time limit from the day they receive the request (whether it is a working day or not) until the corresponding calendar date in the next month. For example, a Data Controller receives a request on 3rd September. The time limit will start from the same day. This gives the Data Controller until 3rd October to comply with the request.

If this is not possible because the following month is shorter (and there is no corresponding calendar date), the date for response is the last day of the following month. If the corresponding date falls on a weekend or a public holiday, Data Controllers have until the next working day to respond.

This means that the exact number of days Data Controllers have to comply with a request varies, depending on the month in which the request was made. For example, an organisation receives a request on 31st March. The time limit starts from the same day.
As there is no equivalent date in April, the Data Controller has until 30th April to comply with the request. If 30th April falls on a weekend, or is a public holiday, the Data Controller has until the end of the next working day to comply.

The ICO says that, for practical purposes, if a consistent number of days is required (e.g. for operational or system purposes), it may be helpful to adopt a 28-day period to ensure compliance is always within a calendar month.

Data Controllers need to consider the implications of the revised ICO guidance on their SAR procedures and standard response letters.

You may also be interested in Susan’s Wolf’s blog on the latest case on subject access for paper records.

 

More on these and other developments in our GDPR update workshop presented by Ibrahim Hasan. Looking for a GDPR qualification? Our practitioner certificate is the best option.

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GDPR and Brexit: What next?

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We are heading for a No Deal Brexit it seems (at least today!). What are the implications for the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA2018)?  Can we bin them on the 31st October with our red EU passports? The answer is no. GDPR and the DPA are here to stay albeit there will be immediate amendments coming into force if Boris does not “pull a rabbit out of the hat.”

The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 were made earlier this year. Some of the sixty one pages of regulations (dealing with minor issues) came into force on 29thMarch 2019, with the rest coming into force on exit day (currently 31stOctober unless something happens in the next few weeks like a General Election!).

The new regulations will only apply if we crash out of the EU without a deal. If Boris gets a deal then GDPR will apply “as is” until the end of the transitional period (currently December 2020). But no deal will mean no transitional period and changes to GDPR as we know it.

The current (EU) version of GDPR, contains many references to EU laws, institutions, currency and powers, amongst other things, which will cease to be relevant in the UK after Brexit. The new regulations amend GDPR to remove these references and replace them with British equivalents where applicable. The functions that are assigned to the European Commission will be transferred to the Secretary of State or the Information Commissioner. From exit day this new amended version of GDPR will be imaginatively titled, the “UK GDPR”.

In a no deal scenario, the UK will immediately become a third country under GDPR and so EU Data Controllers will not be able to transfer data to the UK unless additional safeguards are in place. The regulations deal with post Brexit international data transfers from the UK by amending the GDPR and adding additional provisions to the DPA 2018. Broadly these mirror the current arrangements in the GDPR. However for the lawful transfer of personal data from the EU into the UK without additional safeguards being required, the UK will need to apply to the EU for adequacy status and join a list of 12 countries. The regulations attempt to make the UK version of GDPR as robust as the EU version and hopefully achieve an adequacy decision quickly. However the UK government has acknowledged that there would be no prospect of a positive adequacy decision in the foreseeable future.

The new regulations also amend the Data Protection Act 2018 (DPA 2018) which must be read alongside GDPR. Chapter 3 of Part 2 of the DPA 2018 currently applies a broadly equivalent data protection regime to certain types of data processing to which the GDPR does not apply (“the applied GDPR”). For example, where personal data processing is related to immigration and to manual unstructured data held by a public authority covered by the Freedom of Information Act 2000 (FOI). The DPA 2018 applies GDPR standards to such data whilst adjusting those that would not work in the national context.Amongst other things, the new regulations merge this part into the UK GDPR.

All Data Controllers and Processors need to assess their EU/UK data flows and think what measures they can put into place to ensure continuity post No Deal Brexit.

The uncertainty around Brexit means that it is an interesting time for Data Protection Officers and advisers. Watch this space!

More on these and other developments in our GDPR update workshop presented by Ibrahim Hasan. Looking for a GDPR qualification? Our practitioner certificate is the best option.

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A New (GDPR) Data Sharing Code

Copy files, data exchange. Files transfer. Fast file transfer management

The law on data sharing is a minefield clouded with myths and misunderstandings.
The Information Commissioner’s Office (ICO) recently launched a consultation on an updated draft code of practice on this subject. Before drafting the new code, the ICO launched a call for views in August 2018, seeking input from various organisations such as trade associations and those representing the interests of individuals. (Read a summary of the responses here). The revised code will eventually replace the version made under the Data Protection Act 1998, first published in 2011.

The new code does not impose any additional barriers to data sharing, but aims to help organisations comply with their legal obligations under the General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA 2018).
Launching the consultation, which will close on 9th September 2019, the ICO said the code will:

“… address many aspects of the new legislation including transparency, lawful bases for processing, the new accountability principle and the requirement to record processing activities”.

Once finalised, the code will be a statutory code of practice under section 121 of the DPA 2018. Under section 127, the ICO must take account of it when considering whether a Data Controller has complied with its data protection obligations in relation to data sharing. The code can also be used in evidence in court proceedings and the courts must take its provisions into account wherever relevant.

Following the code, along with other ICO guidance, will help Data Controllers to manage risks; meet high standards; clarify any misconceptions about data sharing; and give confidence to share data appropriately and correctly. In addition to the statutory guidance, the code contains some optional good practice recommendations, which aim to help Data Controllers adopt an effective approach to data protection compliance.
It also covers some special cases, such as databases and lists, sharing information about children, data sharing in an emergency, and the ethics of data sharing.Reference is also made to the provisions of the Digital Economy Act 2017 which seeks to promote data sharing across the public sector

There is also section on sharing data for the purposes of law enforcement processing under Part 3 of the DPA 2018. This is an important area which organisations have not really understood as demonstrated by the recent High Court ruling that Sussex Police unlawfully shared personal data about a vulnerable teenager putting her “at greater risk.”

Steve Wood, the Deputy Information Commissioner for Policy, said:

“Data sharing brings many benefits to organisations and individuals, but it needs to be done in compliance with data protection law.”

“Our draft data sharing code gives practical advice and guidance on how to share data safely and fairly, and we are encouraging organisations to send us their comments before we launch the final code in the Autumn.”

You can respond to the consultation via the ICO’s online survey, or email datasharingcode@ico.org.uk until Monday 9 September 2019.

More on these and other developments in our GDPR update workshop presented by Ibrahim Hasan. Looking for a GDPR qualification? Our practitioner certificate is the best option.

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