GDPR: One Year on

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The General Data Protection Regulation (GDPR) and the Data Protection Act 2018 came into force on 25th May 2018 with much fanfare. The biggest change to data protection law in 20 years, with GDPR carrying a maximum fine of 20 million Euros or 4% of gross annual turnover (whichever is higher), the marketing hype, emails and myths came thick and fast.

There has been no avalanche of massive fines under GDPR. According to a progress report by the European Data Protection Board (EDPB), Supervisory Authorities from 11 EEA countries imposed a total of €55,955,871 in fines. This is not a large amount when you consider it includes a 50 million euro fine on Google issued by the French National Data Protection Commission (CNIL). It followed complaints from two privacy groups who argued, amongst other things, that Google did not have a valid legal basis to process the personal data of the users of its services, particularly for ads personalisation purposes, as they were in effect forcing users to consent.

EPDB figures also show:

  • 67 % of Europeans have heard of GDPR
  • Over 89,000 data breaches have been logged by the EEA Supervisory Authorities. 63% of these have been closed and 37% are ongoing
  • There have been 446 cross border investigations by Supervisory Authorities

Despite the warnings of data armageddon, Year one of GDPR has mostly been a year of learning for Data Controllers and one of raising awareness for Supervisory Authorities. The Information Commissioner’s Office (ICO) in the UK, has produced a GDPR progress report in which it highlights an increased public awareness.In March it surveyed Data Protection Officers. 64% stated that they either agreed or strongly agreed with the statement ‘I have seen an increase in customers and service users exercising their information rights since 25 May 2018’.

The ICO has not issued any fines yet but has used its other enforcement powers extensively. It has issued 15 Assessment Notices and 11 Information Notices in conjunction with various investigations including into data analytics for political purposes, political parties, data brokers, credit reference agencies and others. Two Enforcement Notices have been issued against a data broking company and the HMRC respectively (read our blog) as well as warnings and reprimands across a range of sectors including health, central government, criminal justice, education, retail and finance. (25/6/19 STOP PRESS  – Enforcement notices have been served (25th June), under the 1998 and 2018 Data Protection Acts on the Metropolitan Police, for sustained failures to comply with individuals’ rights in respect of subject access requests.)

The ICO is planning to produce four new codes of practice in 2019 under GDPR. Here are the dates for your diary:

  • A new Data Sharing code. A draft code for formal consultation is expected to be launched in June 2019 and the final version laid before Parliament in the autumn.
  • A new Direct Marketing code to ensure that all activities are compliant with the GDPR, DPA 2018 and the Privacy and Electronic Communications Regulations (PECR). A formal consultation on this will be launched in June 2019 with a view to finalising the code by the end of October.
  • A Data Protection and Journalism code. A formal consultation on this will be launched in June 2019 with a view to laying the final version before Parliament in the summer.
  • A code of practice on political campaigning. The code will apply to all organisations who process personal data for the purpose of political campaigning, i.e. activity relating to elections or referenda. A draft will be published for consultation in July 2019.

Year 2 of GDPR will no doubt see more enforcement action by the ICO including the first fines. According to its progress report though, it will continue to focus on its regulatory priorities which are cyber security, AI Big Data and machine learning, web and cross device tracking for marketing purposes, children’s privacy, use of surveillance and facial recognition, data broking, the use of personal information in political campaigns and Freedom of Information compliance.

Finally, depending on whether there is Brexit deal, we may see some changes to GDPR via the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 which came into force in March this year.

More on these and other developments will be in our GDPR Update webinar and full day workshop presented by Ibrahim Hasan. For those seeking a GDPR qualification, our highly popular practitioner certificate is the best option. Read our testimonials here.

First Two GDPR Enforcement Notices – Lessons Learnt

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The Information Commissioner’s Office (ICO) recently served only its second Enforcement Notice for breaches of the GDPR.

The first Enforcement Notice was issued in July 2018 against a Canadian company, AggregateIQ Data Services Ltd (AIQ). Strangely it was not published on the ICO’s website but was mentioned in the ICO’s report: “Investigation into the use of data analytics in political campaigns“. Pursuant to section 149 of the Data Protection Act 2018, the notice required AIQ to “cease processing any personal data of UK or EU citizens obtained from UK political organisations or otherwise for the purposes of data analytics, political campaigning or any other advertising purposes.”

The ICO found that AIQ had violated Article 5 and 6 of the GDPR, by processing personal data unbeknown to the data subjects, for undeclared purposes and without a lawful basis for such processing. It had also failed to provide the transparency information, as required under Article 14 of the GDPR.

On 9thMay 2019, the Second Enforcement Notice was served on Her Majesty’s Revenue and Customs (HMRC) ordering it to delete personal data it collected unlawfully as part of a Voice ID system. The background to the notice is thatHMRC adopted a voice authentication, in January 2017, which asked callers to some of its helplines to record their voice as their password. A complaint from Big Brother Watch to the ICO revealed that callers were not given further information or advised that they did not have to sign up to the service. There was no clear option for callers who did not wish to register. In short, HMRC did not have adequate consent  from its customers to collect the data.

In the notice, the Information Commissioner says that HMRC appears to have given “little or no consideration to the data protection principles when rolling out the Voice ID service.” She highlights the scale of the data collection – seven million voice records – and that HMRC collected it in circumstances where there was a significant imbalance of power between the organisation and its customers. It did not explain to customers how they could decline to participate in the Voice ID system. It also did not explain that customers would not suffer a detrimental impact if they declined to participate.

It was also found that a data protection impact assessment (DPIA), that appropriately considered the compliance risks associated with processing biometric data, was not in place before the system was launched. The ICO plan to follow up the enforcement notice with an audit that will assess HMRC’s compliance with good practice in the processing of personal data.

  • Recording voices which can be used to identify the speaker is biometric data. This is classed as Special Category Data under GDPR.
  • If Data Controllers are planning to rely on consent as a legal basis to process such data, then they must remember that any consent obtained must be explicit (see the ICO guidance on informed consent).
  • Large scale use of biometric data is also “high risk” processing and will require a DPIA.
  • Data Controllers must be able to demonstrate their GDPR compliance by putting appropriate technical and organisational measures in place.

Steve Wood says:

“With the adoption of new systems comes the responsibility to make sure that data protection obligations are fulfilled and customers’ privacy rights addressed alongside any organisational benefit. The public must be able to trust that their privacy is at the forefront of the decisions made about their personal data.”

More on these and other developments will be in our GDPR Update webinar and full day workshop presented by Ibrahim Hasan. Act Now runs a full day workshop which can teach you how to do a DPIA. For those seeking a GDPR qualification, our practitioner certificate is the best option.

 

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