April 13, 2017

Global Data & Privacy Update - April 2017

Welcome to the April 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.

Article 50 triggered - White Paper on legislating for the UK's withdrawal from the EU

A day after triggering article 50 the Government published a white paper which set out the approach for legislating for the UK's withdrawal from the EU. This paper says that there will be a Great Repeal Bill which will repeal the European Communities Act 1972 (which gave effect to EU law in the UK and made EU law supreme over UK law) and convert EU law into domestic law on the day the UK leaves the EU. Historic case law from the Court of Justice of the European Union will be given the same binding status as decisions of the Supreme Court. The Bill will also create, by secondary legislation, the power to correct statutes as necessary to rectify issues occurring as a consequence of leaving the EU.

What does this mean for you?

It means that EU laws in force before the withdrawal date will still be applicable to you and your business after Brexit, this includes all of the current data protection legislation and the General Data Protection Regulation coming into force on 25 May next year. It will then be for the government to repeal legislation as it sees fit and adjust statutes where there are issues due to leaving the EU.

Click here to read the white paper in full.

LIBE Committee declares EU-US Privacy Shield inadequate

The European Parliament's Civil Liberties, Justice, and Home Affairs Committee (LIBE Committee) has narrowly voted for a resolution declaring the Privacy Shield inadequate.

The Privacy Shield is a method for US-based companies to transfer personal data from the EU to the US. It was established last year following the invalidation in late 2015 of the Safe Harbour agreement.

The LIBE Committee criticised the regime on two key fronts. Firstly there are concerns about the system for EU citizens' rights to redress due to concerns surrounding the independence of the Ombudsman set up in the US. Secondly, the privacy shield does not prevent surveillance by US authorities.

This resolution does not affect the current status of the EU-US Privacy Shield, however, the European Parliament is set to discuss the Privacy Shield and vote on the LIBE Committee's resolution in early April.

Click here to read the draft motion for a resolution.

ICO Paper on profiling under the General Data Protection Regulation (GDPR)

The Information Commissioner (ICO) has published a paper on the profiling provisions under the GDPR. The rules surrounding profiling will strengthen under the GDPR (coming into force in May 2018).

The paper highlights some of the changes under the GDPR and challenges that businesses face by using profiling under the new legislation which need further consideration. The ICO is seeking feedback from companies of how they might deal with certain issues by 28 April 2017. The Article 29 Working Party is set to publish guidelines on profiling later this year, as part of this, the ICO will provide the UK's thoughts on the matter and the feedback from this paper will help inform their views. We plan to submit our views on the issues raised and encourage all our readers to do the same.

Click here to view the ICO paper.

ICO updates paper on big data, artificial intelligence, machine learning and provides recommendations on managing data protection implications

The ICO has updated its 2014 paper on this topic given data protection changes and the advances and prominence of big data, artificial intelligence and machine learning.

The paper defines and discusses the different concepts before examining in depth the data protection implications. The ICO provides suggestions and compliance tools on how to comply with the Data Protection Act (DPA) and GDPR.

Click here to read the full paper.

ECJ rules the right to be forgotten does not apply to company registry data

The European Court of Justice (ECJ) has ruled that the right to be forgotten does not generally apply to personal data within a company register. 

Mr Manni, a company director, sought to restrict information about being sole director of a company that went bankrupt in 1992 and later wound up in 2005. He believed this information was affecting his current ability to sell tourist properties. An Italian court on appeal asked the ECJ if personal data on a company register, could after a certain period and on request, be anonymised, deleted or restricted to third parties with a legitimate interest.

The ECJ ruled that individuals are generally not entitled to the removal of personal information from a company register. In its decision it noted that company registers are required to provide legal certainty in dealings between companies and third parties and to protect the interests of third parties. It held that this was not a disproportionate interference with the rights of individuals.

The court recognised that situations requiring this information to be available may exist for years following such an event and so it is not possible to identify a fixed time period rule. The court did state that this will not always be the case. A case-by-case assessment should be taken as certain circumstances may exceptionally mean that access to such data should be limited following expiry of a long time frame after a company's dissolution. Mr Manni's case was not considered an exception as potential purchasers had a legitimate interest to know about the previous insolvency.

Camera di Commercio Industria Artigianato e Agricoltura de Lecce v Salvatore Manni, Case C-398/15, 9 March 2017

Click here for the press release provided by the ECJ.

ICO fines company £270,000 for nuisance calls

Road Accident Consult Ltd (trading as Media Tactics) has been fined by the ICO after 22 million unauthorised pre-recorded marketing calls were made relating to PPI insurance, personal injury claims and debt management.

Media Tactics believed that the people whose data it had bought had consented to being contacted. The contact information had been obtained from websites (including payday loan, insurance brokers and music streaming websites) where customers had agreed to their details being shared with "third parties whose offers we think might interest you".

The ICO found that the privacy notices on the websites were generic and unspecific. It held that Media Tactics did not have consent of those contacted, which is against the law. Media Tactics, in addition to receiving the fine, have received a legal notice compelling it to stop making unlawful calls.

Click here to read the ICO's article on the decision and here for the ICO's decision in full.

ICO fines company £20,000 for sending marketing texts without consent

Munee Hut LLP (Munee Hut) hired a Belizean firm to send marketing texts to 64,000 people. The personal data used to send these messages was obtained from a variety of loan and prize draw websites, none of which stated that the data would be used for the purpose of sending texts on behalf of Munee Hut.

The law states that companies must have express consent to data being used to send marketing text messages from or on behalf of their firm. For failing to have this consent, the ICO fined Munee Hut, under section 55A of the DPA, and in addition to the fine has issued a legal notice to stop sending unlawful text messages.

Click here to view the monetary penalty notice.

ICO fines barrister £1,000 for failing to keep sensitive personal information secure

A barrister has been fined for failing to keep clients' sensitive personal data secure. Documents were temporarily uploaded to the internet during a software upgrade leaving information visible on an internet search. The documents included 725 unencrypted documents comprising of information about up to 250 clients, including vulnerable adults and children, as well as material related to individuals involved in Family Court and Protection Court cases.

Click here to view the monetary penalty notice.

ICO fines county council £60,000 for leaving sensitive files in furniture sent to a second hand shop

Norfolk County Council has been fined for failing to comply with the seventh data protection principle under the DPA after leaving sensitive files in a cabinet provided to a second hand shop. The cabinet was sold to a member of the public and contained sensitive information relating to seven children.

Click here to view the monetary penalty notice.

ICO fines private health firm £200,000 for failing to keep IVF patients' conversations secure

The ICO has fined a private health firm, HCA International Ltd, for failing to keep data secure after it was found that conversations had by IVF patients were online.

Audio recordings of interviews with patients were being sent to a company unencrypted in India for transcription. The Indian company was unable to maintain secure access due to an unsecure server.

By failing to ensure its subcontractor had acted responsibly, HCA International failed to comply with the seventh data protection principle.

Click here to view the monetary penalty notice.

EDPS publishes opinion on data protection aspects of the proposed directive on contracts for supply of digital content

The European Data Protection Supervisor (EDPS) has published an opinion on the data protection elements of the proposed directive on contracts for supply of digital content which extends consumer protection to the sale of digital goods and online services.

The EDPS is generally in favour of the proposed directive's aims, however, does note potential issues about data (personal or otherwise) being used as a commodity and the directive overlapping with EU data protection legislation such as the GDPR.

The opinion also notes future personal data issues which may impact supply contracts of online services, such as companies providing 'free' services in exchange for personal data. This is seen as contrary to the data protection legislation created by the EU and should not be permitted. The opinion cautions against rules that cross-over with the incoming GDPR and proposed E-Privacy regulation as this would cause conflict and confusion.

Click here to read the EDPS' full opinion.

Scottish Court awards compensation for intrusive CCTV recordings at a family home

A Scottish Sheriff Court has awarded more than £17,000 in damages for distress caused by intrusive CCTV and audio recordings under section 13(1) of the DPA.

The complainants lived in a flat where the building owner installed CCTV and audio recording devices. From 2013 four cameras and four audio devices were installed which intentionally also recorded the complainants' private property. The cameras recorded 24 hours a day and stored up to five days of data which was remotely accessible. The claimants claimed for distress from the concern of others listening to their conversations.

The court found that the owner who installed the CCTV, as data controller, had breached their data protection obligations under the first, third and fifth principle data protection principle. The devices were installed without notice, consultation or justification of a legitimate interest. The surveillance was deemed to not be relevant and labelled extravagant due to the extent of unnecessary areas captured. The defendant had no data retention policy and the data was stored for 5 days (owing to device default) rather than a shorter period such as one day which would be more appropriate to record any confrontations. The complainants' damages calculation was accepted by the court, however there is currently no legislative guidance for claims for distress under the DPA. The calculation was based on a sum per day per person since the start of the DPA breach, with a deduction of a month to account for periods when the claimants were not present at the property.

Anthony Woolley and Deborah Woolley v Nahib Akbar Or Akram [2017] SC EDIN 7, 3 February 2017