The National Cyber Security Centre (NCSC) and the Information Commission Office (ICO) have clarified their roles in relation to breaches of cyber security. NCSC manages cyber incidents at a national level to prevent harm being caused to both victims and the UK overall. It helps manage the response at a governmental level and seeks to ensure that lessons are learned to help deter future attacks. The ICO is the independent regulator for enforcing and monitoring data protection legislation and the competent authority for Digital Service Providers under the Network and Information Systems (NIS) Directive. The ICO is the first port of call for organisations who have suffered a breach of cyber security. Continue reading
The UK’s data protection authority, the ICO, has announced twice in two days this week that it proposes to levy significant fines on organisations for breaches of the General Data Protection Regulation (GDPR), which took effect in May 2018. First it announced that it intends to fine British Airways some £183 million for a data breach in 2018 that affected 500,000 customers (see our Data Blog here for more details). The following day it announced that it proposed to fine Marriott hotels group nearly £100 million, again for a data breach that affected customers (see our Data Blog here for more details). Both BA and Marriot may make representations to the ICO before final decisions are taken. These proposed fines dwarf previous fines issued by the ICO which were capped at £500,000 under the old privacy regime.
Until now the business world has been waiting to see how the ICO would use its powers under the new GDPR regime. Under the regime, the ICO can now impose a broader range of significant civil penalties for data protection breaches than was previously possible. This includes penalties of up to €20 million or 4% of a company’s global annual turnover, as well as potentially ordering companies to stop processing personal data altogether. The ICO is clearly now baring its teeth. Continue reading
The GDPR came into effect almost a year ago on the 25 May 2018. As the most significant reform of data protection law in Europe for over 20 years, the legislation raised expectations of a cultural shift in attitude to data privacy. A year on from the fanfare of implementation, this bulletin looks at key aspects of what we have seen and learnt since implementation, and what we can expect for the future.
Although we are still waiting for a ‘GDPR mega fine’, we have seen a EUR 50 million fine levied by the CNIL in France and there have also been some interesting enforcement decisions coming out of Europe in the first 12 months. There have been rumours of a fine matrix being developed by the regulators to help assess the level of fine to be imposed but, for now at least, it remains unclear how fines are calculated and when a ‘mega fine’ may be appropriate.
Interesting enforcement action to note so far includes:
UK: ICO finds HMRC to be in “significant” breach of data protection legislation but does not impose a fine
In May 2019, the ICO found HMRC in the UK to be in “significant” breach of the GDPR by processing special category biometric data (voice recognition data) without a lawful basis. However, instead of imposing a monetary penalty, the ICO issued an enforcement notice requiring HMRC to delete the relevant data by early June 2019. For more information on this enforcement action, see our blog post here.
Belgium: Court of Appeal asks CJEU for GDPR guidance on the ‘one stop shop’
In May 2019, the Belgian Court of Appeal asked the European Court of Justice for help interpreting the application of the GDPR’s ‘one stop shop’ and whether the designation by companies of a lead supervisory authority in Europe precludes any other European supervisory authority from taking enforcement action against that company. The results of the case will either open or close the doors for regulators across Europe to cast aside the one stop shop when looking to enforce GDPR compliance in their home jurisdiction. For more information on this enforcement action, see our blog post here.
Poland: When is it a disproportionate effort to provide a privacy notice?
In April 2019, the Personal Data Protection Office in Poland issued a €220,000 fine to a digital marketing company for breaching its obligations under Article 14 of the GDPR (i.e. to provide a privacy notice to individuals). The decision has some important practical implications for organisations, including that: (i) the collection of publicly-available information from the internet does not relieve you of your obligations under the GDPR; (ii) a significant cost (in this case €8 million) involved with providing privacy notices to individuals is not sufficient to be able to rely on the ‘disproportionate effort’ exemption under Article 14; and (iii) the GDPR is not prescriptive about how individuals must be provided with privacy information but the ‘passive’ posting of a notice on a website is unlikely to be sufficient where the individuals are unaware of the collection of their data. For more information on this enforcement action, see our blog post here.
Germany: German competition regulator takes enforcement action against Facebook for data issues
In a slight move away from privacy regulation, the German competition authority, the Federal Cartel Office, announced the results of its investigation into Facebook in February 2019. The decision highlights the ever increasing tension between competition and privacy regulation. The FCO found that Facebook had a dominant position in the German market for social networks, and abused this with its data collection policy. The FCO did not impose a fine on Facebook, but has instead required Facebook in the future to only use data from non-Facebook sources where it has users’ voluntary consent, the withholding of which cannot be used to deny access to Facebook. For more information on this enforcement action, please see our blog post here.
UK: First extra-territorial enforcement action commenced by the ICO
In October 2018, the UK data protection regulator, the ICO, issued its first enforcement notice under the GDPR. The notice was particularly noteworthy because it was issued against a company located in Canada, which does not have any presence within the EU. Despite the breaches being alleged, the enforcement notice was the first issued by the ICO relying on the extra-territorial provisions of the GDPR under Article 3. For more information on this enforcement action, please see our blog post here.
For many companies, a frustrating aspect of GDPR compliance over the last year has been the uncertainty. One year on from GDPR implementation and many questions remain unanswered. But we have now started to see signs that fundamental questions may eventually be answered and new regulatory guidance is starting to drip feed through the process.
Interesting regulatory guidance published over the last year includes:
A global regulation? EDPB guidelines on GDPR’s extra-territoriality provisions
The expansive nature of the GDPR’s extra-territoriality provisions has resulted in many organisations outside of Europe questioning whether or not they are subject to the GDPR regime. The market has eagerly awaited any guidance in respect of how Article 3 of the GDPR should be interpreted, and so the draft EDPB guidance published late last year was welcomed by the data community and the market as whole. However, whilst the draft guidance answered certain questions about the application of the GDPR, it also left a number of gaps and so we are still awaiting the final version of the guidance in the hope that some of those gaps will be closed. For more information on this guidance, see our blog post here.
EDPB guidance on when processing is “necessary for the performance of a contract”
In April 2019, the EDPB published guidance on the ability of online service providers to rely on the fact that processing is necessary for the performance of a contract in order to legitimise their processing of personal data. Although aimed specifically at online services, the guidance will nonetheless be useful for all controller organisations looking to rely on this processing condition. The guidance adopts a fairly narrow approach to interpretation with an objective assessment of “necessity” being required as opposed to relying on what is permitted under or required by the terms of a contract. For more information on this guidance, please see our blog post here.
EDPB opinion on the interplay between GDPR and ePrivacy
With companies having completed their GDPR compliance programmes, thoughts are now turning to the next major piece of European regulation in the data privacy sphere, the proposed ePrivacy Regulation, and how ePrivacy interacts with the GDPR, particularly with respect to cookie consent and email marketing. In March 2019, the EDPB published an opinion on the interplay between GDPR and ePrivacy which, whilst interesting, also confirmed that the whole ePrivacy regime is currently being renegotiated at a European level and the new ePrivacy Regulation could further change the position outlined in the opinion. As such, the opinion itself appears to be of minimal use for companies. For more information on this guidance, please see our blog post here.
What’s still to come?
One year on from GDPR implementation and we’ve seen limited enforcement action and even less regulatory guidance, meaning that companies are still having to try and find their way through compliance without direction. Much remains unknown and unanswered but what can we expect (or hope) from the next 12 months?
The Brexit issue rumbles on without much/any clarity or certainty. We know that an adequacy decision for the UK is extremely unlikely in the short term but whether or not an interim transition deal is achievable (including with respect to data protection and data transfers) remains unknown at this stage.
Although the results of the EU-US Privacy Shield annual review in 2018 seem to confirm that the Privacy Shield remains intact for the short term, there remain significant uncertainties around the future of other compliant international data transfer mechanisms. In particular, the validity of the so-called Standard Contractual Clauses (“SCCs”) continues to be challenged through the courts which could result in the SCCs being struck down by the CJEU in the same way that the US Safe Harbor was in 2015.
Continuing on the theme of international transfers, we are also still awaiting the publication of updated versions of the SCCs. The current versions still refer to the 1995 Directive instead of the GDPR but cannot be amended for sense without the risk of invalidating them. There are rumours that the EU Commission has started to consider an update, including potentially updating the controller to processor SCCs to include Article 28 obligations. However, we have yet to see anything concrete coming out of Europe.
As mentioned above, the ePrivacy Directive is currently being renegotiated and was originally intended to be ready in time for the GDPR implementation. However, the failure of the European institutions to agree on a number of issues has resulted in multiple delays and it now does not look likely that a draft will be agreed before the end of 2019/early 2020, meaning that the situation regarding cookie consent and email marketing is likely to remain uncertain for a considerable period of time.
As noted above, we are still awaiting a GDPR ‘mega fine’ but we also haven’t yet seen much in the way of significant volumes of enforcement action in order to be able to gain any meaningful insights into enforcement. There are rumours of significant enforcement actions in the pipeline from the ICO and the Irish Data Protection Commissioner, and we also know that there have been a number of material personal data breaches since implementation of the GDPR, but we will have to wait and see what happens in year two of GDPR.
Individual rights and data disputes
Although the GDPR provided for enhanced data subject rights for individuals, we have also started to see it being used innovatively as a mechanism by individuals to assert other rights, including human rights and the right to privacy. We have seen Prince Harry assert that a news company’s photograph of him at home was in breach of GDPR, and a claim against the Police for their use of facial recognition technology has recently started in Wales. Going forward, we are therefore likely to see GDPR used as a tool in disputes. For more information about this, please see our blog post here.
Data breach compensation
Perhaps the elephant in the room sits with data breach compensation. In April 2019 the Supreme Court granted Morissons permission to appeal against the Court of Appeal ruling that it was vicariously liable for its employee’s misuse of data, in the first successful UK class action for a data breach. Whilst the date for the Supreme Court’s hearing is still to be confirmed, the appeal is likely to take place during the course of 2020. For more information on the case, please see our blog post here.
New emerging technologies
The age-old issue of technological innovation outpacing the ability of legislation to keep up has reared its head only one year into the GDPR’s lifecycle. Organisations are having to apply the text of the GDPR to scenarios including blockchain technology, connected and autonomous vehicles and AI techniques that simply weren’t envisaged at the time of writing. In this rapidly evolving technological landscape, the need for regularly updated, up-to-the-minute official guidance in respect of these types of scenarios has never been greater but this will be an extremely challenging demand for the regulators to satisfy.
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At the end of March the Information Commissioner’s Office (ICO) published an outline of the proposed structure for its auditing framework for the use of personal data in an Artificial Intelligence (AI) context. Once finalised the framework has potential to help catalyse the use of this new emerging technology within the restrictions of data protection regulation. In particular, it is intended to support the ICO in assessing data controller compliance, as well as providing data protection and risk management guidance, in relation to AI. Continue reading
Following a UK Cabinet meeting on 14 November 2018, the UK Government has announced support for the text of a draft Withdrawal Agreement and an outline of the Political Declaration on the Future Relationship agreed with EU negotiators. The Withdrawal Agreement sets out the arrangements for the UK’s withdrawal from the EU on 29 March 2019 and includes a transition period through to 31 December 2020, during which EU law will continue to apply in and to the UK (the “Transition Period”). Data protection features in both the draft Withdrawal Agreement and the outline Political Declaration, reflecting the significance of the data protection rules to both the EU and the UK. Continue reading
The UK data protection regulator, the Information Commissioner’s Office (ICO), has issued its first enforcement notice under the EU’s new strict data protection law, the General Data Protection Regulation (679/2016/EU) (GDPR). The notice is particularly noteworthy because it has been issued against a company located in Canada, which does not appear to have any presence within the EU.
Not only is it the first extra-territorial notice issued by the ICO under the GDPR, but it is the first action ever taken by the ICO against an entity outside the UK. It is understood that the notice is being appealed. The extraterritorial reach of the GDPR is as yet untested and, without any regulatory guidance as to interpretation, how that appeal plays out may be an early indicator as to the issues that could arise in extra-territorial enforcement under the GDPR.
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In anticipation of the GDPR, various guidance has been published by the Article 29 Working Party, the body of national EU data regulators.
Of most relevance in the cyber context is the guidance on personal data breach notifications; the Article 29 Working Party issued its initial guidance in October 2017 and published a final version of the guidelines (which remained mostly unchanged) in February 2018.
This guidance relates to the new requirement under the GDPR for all controllers to notify the appropriate data protection authority of a personal data breach, following a cyber attack for example. This will include providing the regulator with a significant amount of information about the breach and marks a change from the previous regime (under the Data Protection Act 1998) where notification to the ICO was not mandatory, although the ICO encouraged notification for serious breaches.
The key areas addressed by the guidance include further clarity on what constitutes awareness of a breach, when notification is and is not required in respect of examples of different types of breaches, when the clock starts running in relation to the 72 hour deadline and how to manage conflicting requirements of the GDPR and those of law enforcement authorities outside of the EU. For further information, a copy of the guidance can be found here.
In light of the booming market of the Internet of Things (“IoT”) and of the General Data Protection Regulation (“GDPR”), the Information Commissioner’s Office (“ICO”) has published an article focusing on the key factors manufacturers and retailers of IoT devices should be thinking about. This follows the ICO’s draft guidance on data controller and processor liability issued in September last year, which can be found here.
Significant vulnerabilities that could allow cyber attackers to compromise data have been found in common processors in almost all modern devices.
What are “Meltdown” and “Spectre”?
The vulnerabilities, known as “Meltdown” and “Spectre”, are two related so-called “side-channel” attacks that have been found in central processing chips (CPUs) designed by Intel, AMD (Advanced Micro Devices Inc) and ARM (Advanced RISC Machines Ltd). The issue was recently discovered by security researchers at Google’s Project Zero in conjunction with academic and industry researchers from several countries. Continue reading