Brexit Withdrawal Agreement: Impact for data protection

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

General Data Protection Regulation: first enforcement notice shows extra-territorial reach

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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Data breaches: new Article 29 Working Party guidance

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.

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Internet of Things – ICO’s six reasons why businesses should be thinking about data protection and the DCMS’s Secure by Design Report

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.

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Risk of a “Meltdown”? Recent authority guidance and practical tips to mitigate the risk of organisations falling victim to the latest cyber exploits

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

Outsourcing to the Cloud: EBA issues Final Report on Recommendations

On 20 December 2017 the European Banking Authority (“EBA”) published its Final Report: Recommendations on Outsourcing to Cloud Service Providers (“CSPs“). The Recommendations will apply from 1 July 2018 to credit institutions as well as investment firms (i.e. not solely to banks). The aim of the EBA Recommendations is to: (i) provide guidance for institutions to enable them to use cloud solutions whilst appropriately managing risk; and (ii) promote supervisory convergence across the EU. The Final Report follows the EBA’s draft recommendations that were published on 18 May 2017 (refer to our previous article here). It should be noted that there is little substantive difference between the draft recommendations and those set out in the Final Report. Continue reading

The GDPR: ICO issues draft guidance on data controller and processor liability

In the run up to the GDPR applying from next year, there has been a variety of practical guidance for compliance at the European level through the Article 29 Working Party (“WP29”) (which reflects the consolidated view of national supervisory data protection authorities in each member state) and at the national level through the UK Information Commissioner’s Office (“ICO”). Continue reading

The GDPR: Practical European Guidance on personal data breach notification requirements

The GDPR introduces a new mandatory requirement for all controllers to notify the appropriate data protection authority of a “personal data breach” likely to result in a risk to people’s rights and freedoms, for example following a cyber-attack. This will include providing the regulator with a significant amount of information about the breach and marks a change from the present regime where notification to the ICO is not mandatory (although the ICO does already encourage notification for “serious breaches”).

The GDPR also includes a new obligation to notify the affected data subjects themselves: when a “personal data breach is likely to result in a high risk to the rights and freedoms of natural persons”. There is an exception in relation to those parts of the data which have been rendered unintelligible to unauthorised persons through the application of technical measures such as encryption or so-called “salting and hashing”.

Fines for breach of the separate fundamental requirements to implement appropriate technical and organisational security measures under Article 32(1) of the GDPR are set at the lower tier under the new sanctions regime. Article 33(5) also requires controllers to document all personal data breaches – comprising the facts of the breach, its effects and remedial actions taken – so as to enable regulators to verify compliance with the Article 32 requirements. This is in line with the accountability principle that runs through the provisions of the GDPR.

The Article 29 Working Party recently issued guidance which discusses the notification obligations and includes some worked examples of various types of breaches, including when notification is and isn’t required. Continue reading

UK Government Position Paper on International Transfers of Data – Key Points

The post below was first published on our Employment blog

Last week the UK Government released its negotiating position paper on international transfers of personal data within the EEA (The Exchange and Protection of Personal Data). Once the UK leaves the EEA it will no longer be subject to the General Data Protection Regulation (the “GDPR”) and would no longer form part of the EU “safe data” zone throughout which personal data may be freely transferred. The GDPR will however continue to apply to UK businesses who provide goods or services to individuals in the EEA.

In line with previous declarations, the position paper outlines the Government’s desire to maintain the “frictionless” movement of data to and from other countries within the EEA. It cites the economic benefits for the UK and EU as well as cooperation in respect of law enforcement matters (such as serious crime and terrorism).

The position paper sets out the Government’s preferred outcome in three key areas:

  • An EU adequacy decision in relation to the UK’s post-Brexit data protection legislation;
  • The continued input of the UK data regulator (the Information Commissioner’s Office (the “ICO”)) in the EU’s regulatory dialogue; and
  • Interim arrangements, from the point of Brexit to the time when more permanent measures  have been put in place, to maintain stability and consistency. Continue reading

Google DeepMind trial failed to comply with data protection law

On 3 July 2017 the Information Commissioner’s Office (“ICO“) determined that the Royal Free NHS Foundation Trust (the “Trust“) had breached the Data Protection Act 1998 (the “Act”) when it provided patient details to Google’s DeepMind.

The Trust provided personal data of approximately 1.6 million patients to Google’s Deep Mind as part of clinical safety tests of a new application ‘Streams’. The application is designed to provide an alert, diagnosis and detection system for acute kidney injury. However an ICO investigation found several issues with the way in which the personal data was handled, including that patients were not adequately informed of how their data would be used (i.e. as part of the clinical safety tests). These shortcomings amounted to non-compliance with at least four of the eight data protection principles under the Act. Continue reading