Useful Article: UK – Liability Limits for GDPR in Commercial Contracts – the Law and Recent Trend

Published by Alisha McKerron on 5 March 2019

In her article (listed in the Menu of this blog) entitled GDPR is Coming: 7 Steps Processors Need to Take to be Compliant (12 December 2017), Alisha sets out mandatory provisions (concerning data processors), which must be inserted in data processing agreements (art. 28 GDPR). Consequences of contractual breaches or non compliance with GDPR are not discussed in any detail.

This important topic is discussed in DLA Piper’s article (7 February 2019) UK: Liability Limits for GDPR in Commercial Contracts – the Law and Recent Trends which looks at how to allocate the risk and liability when negotiating commercial contracts. It considers:

  • Obligations- the source of liability;
  • Types of liability;
  • Limits  of liability.

It concludes that:

“Limiting financial liability under GDPR has been made much more complex than under the Data Protection Act 1998, both because the nature of the obligations placed on both parties has changed and because the consequences of breaches are much more serious. Parties looking to limit their exposure should be realistic and not assume that it will be either possible or desirable to simply pass liability to the other party under the contract in all circumstances, instead, they will need to take a more balanced approach to liability, based on the terms of GDPR and who has caused the loss in question to arise.”

Useful article: reaching the end of your GDPR journey – what should you be thinking about now?

Published by Alisha McKerron on 27 February 2019

In his article GDPR nine months on | What should you be thinking about now? Osborne Clark lists nine items to consider:

  • Updates to existing policies and procedures
  • New policies or procedure
  • Supplier relationships
  • Privacy Impact Assessments
  • GDPR training refresh
  • Data transfers and no-deal Brexit
  • Security breaches and ICO enforcement
  • Compliance strategy
  • One year audit

This is a useful continuation of A GDPR Journey: Where to Start and What to do Next, (listed in the Menu of this blog) depending where you are on your GDPR journey.

What Impact do Search Engines have on Individual’s Reputation and does the “new” Right to be Forgotten Assist in any way?

Introduction

Published by Alisha McKerron on 25 February 2019

What would we do without modern day commercial search engines? For starters it would take us much longer and require much more effort to find answers to everyday questions. Search engines allow us to find the proverbial needle in a haystack.

At first glance this may seem like a good thing, but what if the search results produce links to incriminating information about us. What protection if any do private individuals have?

Google vs Spain

This question was considered in a landmark case of Google v. Spain (C‑131/12). The case involves an individual who requested the removal of a link to a digitized 1998 article in La Vanguardia newspaper about an auction for his foreclosed home, for a debt that he had subsequently paid. He asked the news organisation to remove the article and Google to remove any links to it. The Spanish Data Protection Agency said that the news organisation should be left alone but that Google should remove any links to the article.

On appeal the European Court of Justice affirmed the judgment of the Spanish Data Protection Agency i.e. it upheld press freedoms by rejecting a request to have the article concerning personal bankruptcy removed from the web site of the news organization. However, the Court ruled that European citizens have a right to request that commercial search firms, such as Google, that gather personal information for profit, should remove links to private information when asked, provided the information is no longer relevant. The Court found that the fundamental right to privacy is greater than the economic interest of the commercial firm and, in some circumstances, the public interest in access to information.

(It’s worth mentioning that in November 2018 Google held an 89.1% market share in the UK.)

Google subsequently set up an online removal-of-links-from-its-search-results form for customers to use. It has also published a useful guide entitled “Fix problems & request removals” on Google Search Help. The guide explains the few instances Google will remove content from Search which includes sensitive personal information, like your bank account number, or an image of your handwritten signature, or a nude or sexually explicit image or video of you that’s been shared without your consent. Interestingly the guide does not refer to data that is “inadequate, irrelevant or excessive in relation to the purposes of the processing” (para 92 Google v. Spain).

Right to erasure (“right to be forgotten”) (art. 17 GDPR)

Two years after the Google v. Spain judgement, the General Data Protection Regulations (GDPR) 2016 were published which included a right to erasure (art. 17). This is also know as the right to be forgotten and has been described as “the right to silence on past events in life that are no longer occurring.” It is distinct from a private right (which involves information which is not publicly known) because it involves removing information that was publicly known at a certain time and not allowing third parties to access the information. Although referred to as a new right it isn’t; it existed to an extended degree in EU law, and in the first data protection laws enforced in Europe.

Under GDPR, we have the right to have our personal data erased in six circumstances:

  • if the organisation no longer needs our data;
  • we initially consented to the use of our data, but have now withdrawn our consent;
  • we have objected to the use of our data, and our interests outweigh those of the organisation using it;
  • the organisation has collected or used our data unlawfully;
  • the organisation has a legal obligation to erase our data; or
  • the data was collected from us as a child for an online service.

Exemptions to the right to erasure (art. 17(3) GDPR)

Our right to erasure does not apply if processing is necessary for one of the following reasons (GDPR art.17(3)):

  • to exercise the right of freedom of expression and information;
  • to comply with a legal obligation;
  • for the performance of a task carried out in the public interest or in the exercise of official authority;
  • for archiving purposes in the public interest, scientific research historical research or statistical purposes where erasure is likely to render impossible or seriously impair the achievement of that processing; or
  • for the establishment, exercise or defence of legal claims.

Manni

In summary our right to erasure is limited and is trumped by certain exemptions; freedom of expression and information (or the right of the public to have access to information) being one of them. This is demonstrated in the 2015 court ruling in the Manni case (C-398/15), which clarifies that an individual seeking to limit the access to his/her personal data published in a Companies Register does not have the right to obtain erasure of that data, not even after his/her company ceased to exist.

Mr Manni requested his personal data to be erased from the Public Registry of Companies after he found out that he was losing clients who performed background checks on him through a private company that specialised in finding information in the Public Registry. This happened because Mr Manni had been an administrator of a company that was declared bankrupt more than 10 years before the facts in the main proceedings. In fact, the former company itself was removed from the Public Registry. The court concluded that Mr Manni did not have the right to obtain erasure from the Companies Register, but he did have a right to object.

Conclusion

Case law shows that the web and search engine results impact individual’s reputation and not always in a positive way. Privacy law does protect us.

The right to be forgotten under GDPR gives us the right to have our personal data erased but only in limited circumstances (listed above) and not if any of the exemptions (listed above) apply. One of these exemptions is freedom of expression. The effect of this is to exempt companies listed as “media” companies.

The Google v. Spain case gives us a right to request that commercial search firms, that gather personal information for profit, should remove links to private information when asked, provided the information is no longer relevant.

So, what practical steps should we take if searching our name on the internet brings back a link to information about us, and this is having a negative effect on our privacy?

Personal data

The first step we should take is to ask the publisher to remove the personal data from its website; that way it will no longer appear in search results. Should the publisher refuse to do so and we are satisfied that one of the six circumstances mentioned above applies, and none of the exemptions mentioned above apply, we should complete the Information Commissioner’s Office (ICO) online complaint form so that ICO can pursue the matter further on our behalf.

If we are not satisfied, that one of the six circumstances mentioned above apply we could ask the publisher to use the robot exclusion standard to inform web robots or crawlers not to process or scan the page with the personal data. This will stop any links appearing in search results. However, the publisher may well reject this request on the basis that its freedom of speech trumps our right to privacy.

Search result links to personal data

If the publisher refuses to remove the personal data from its website, the next step we should take is to complete Google’s an online removal-of-links-from-its-search-results form. Although the personal data shall remain on a website it will be less visible if links are removed. Should Google refuse to remove search result links we should complete ICO’s online complaint form  but only if we are satisfied that the personal data is “inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed” and that our right to privacy is greater than the economic interest of Google and the public interest in access to information.

If we are unsuccessful on all of these fronts, it may be worth writing an article in rebuttal or an article which others may find useful. Although searching our name on the internet will continue to bring back a link to information about us which has a negative effect on our privacy, it will now bring back our positive article as well. The more meaningful articles we publish the better.


A GDPR Journey: Where To Start and What To Do Next

Published by Alisha McKerron on 11 February 2019

The European Union’s General Data Protection Regulations (GDPR) impose many obligations on anyone who processes personal data, with substantial fines (art. 83) for any breaches. Although some of these obligations are not altogether new, they are much more extensive: having an extra material and territorial scope (art. 3), extending to data processors, (art.28) and giving data subjects enhanced rights (ch.III). The definition of personal data (art. 4) is much broader too. There is much more to worry about!

If you are non-complaint, what should you do, particularly if you do not have a budget to spent on making amends? Perhaps the starting point is for you to view privacy compliance, as the end destination of an ongoing journey. Your focus should be on travelling in the right direction and being able to demonstrate this. This way, regulators are more likely to focus less on you, and more on those who don’t comply or won’t comply. So where should one start?

The most visible starting point, for most organisations, has been the publication of a privacy notices before GDPR came into force. Less visible is the appointment of data protection officers (DPO) (art.37) which is required under the new regulations if you carry out certain types of processing activities. DPO’s can now report to one lead supervisory authority in instances of multi cross border processing which is a welcome change.

Privacy Notice

Preparing a privacy notice, is a good place for you to start, for a variety of reasons. Firstly, the content (art.13) of the privacy notice is regulated, which means you will have to find answers to the following questions, to prepare it correctly:

  • Who is collecting the data?
  • What data is being collected?
  • What is the legal basis for processing the data?
  • Will the data be shared with any third parties?
  • How will the information be used?
  • How long will the data be stored for?
  • What rights does the data subject have?
  • How can the data subject raise a complaint?

To find the answers you will need to update exiting data maps or prepare new ones. Data maps must reflect the current situation on an ongoing basis. You will need to show that you have at least one of the legal bases (art. 6) for processing. If you are relying on old consents, you will need to refresh them, so that they fall into the new definition of consent (art 4); if you are relying on legitimate interest you should complete a legitimate interest assessment. Checking your legal bases will help you better understand how you are using personal data.

You will also need to find out if the personal data you are processing is shared with others and mention this in your notice. Under the new regulations you are obliged to have a data processing agreement with every data processor you use. (Revising existing data processing agreements and/ or agreeing new ones, is an item to put on your things-to-do-next list).

The position regarding restricted transfers of personal data outside non EU countries has not changed that much: transfers continue to be restricted. There is however the thorny issue of Brexit looming. Have a look at the Information Commissioners Office guidance to help you decide if you will be effected.

If you are making international transfers of personal data, you must disclose this (art. 15(2)) and the permissible ground (ch. 5) you are relying on to do so. Grounds include: the European Commission made an “adequacy decision” about the country in which the receiver is based, or the restricted transfer is covered by appropriate safeguards (including binding corporate rules) or the restricted transfer is covered by an exception.

You must also disclose the use of cookies or similar technology under the GDPR and under the Privacy and Electronic Communication Regulation (PECR ) and ensure that you have a legal base under GDPR for any processing that ensues. (It is worth taking the time to understand the overlap between the PECR and GDPR as it can be confusing.)

GDPR provides that you must not keep personal data for longer than you need it and must disclose how long you will store the information. If you do not already have a data retention policy with a document schedule you should prepare one.

You must notify your data subjects of their enhanced privacy rights and new privacy rights and be prepared to respond if they choose to exercise their rights. New privacy rights include data portability (art. 20), the right to be forgotten (art.17) and safeguards for data processing by automated means (art. 22). (Ensuring that you have updated your policies and procedures to help your staff respond to new rights as well as the old enhanced rights (e.g., data subject access requests) in a correct and consistent way, is another item to add to your list).

Obligations with time constraints

After publishing your privacy notice, the next thing you should do is to identify any privacy obligations (whether under the regulations or by agreement) with time constraint attached. Reputational damage for non-compliance should not be underestimated.

One such obligation is the new duty to report personal data breaches (art.33) to a supervisory authority and affected individual. An internal breach register must also be maintained. GDPR requires you to notify the supervisory authority, without undue delay and not later than 72 hours after becoming aware of it, if the breach is likely to result in risks to rights and freedoms of a natural person. If the data breach is likely to result in high risk to the rights and freedoms of natural persons the data subject must be informed too, without undue delay. Questions worth considering include:

  • Do you have something in place (e.g. an API or web forms to document paper incidents) that facilitates both identifying and reporting on personal data breaches?
  • Do you have a consistent approach (i.e. risk assessment) to determine whether an incident is subject to a notification obligation or are you possibly over-notifying?
  • Are you determining jurisdictions impacted and the number of individuals involved on a consistent basis?
  • Does it make sense to create a diverse team to triage and risk rank to ensure that incidents are being escalated appropriately?

Another obligation with a time constraint, is revised subject access requests (art.12 and 15). Now a request can be communicated over the phone (art 15 (3)) and associated costs can’t be claimed. You must respond without undue delay and at the latest within one month (as opposed to the old 40 days) of receipt. The same new time period applies to the right to rectification (art.16). Again, it is worth checking that you have sufficient resources and policies and procedures in place to respond.

Conclusion

The most helpful way of tackling GDPR compliance is to view it as a journey to an end destination. Expect to discover compliance weaknesses on your journey and compile a things-to-do-next list to help propel you forward. To begin with it may feel l like your end destination is getting further away rather than closer, but don’t let this bog you down. What’s important is that you continually move forward in the right direction, are transparent with how you collect and process personal data and are constantly striving to keep your customer’s personal data secure.

Where Should I Go to Find Answers to my Privacy Questions?

Published by Alisha McKerron on 30 January 2018

screenshot 2019-01-30 at 10.58.49

It has been eight months since the General Data Protection Regulation (GDPR) came into force. But it has been five years in the making. During this time a wealth of online resources have slowly been created in response to the GDPR and people’s queries about it.

However, reviewing all the information on the web takes time, especially if you don’t know where to look. You might, therefore, prefer to use a data specialist. But if you are the-do-it yourself type, or simply do not have the money to spend on a data specialist, I may be able to help. Below is a table of useful links I have used when researching privacy questions of my own. Since January heralds the anniversary of Data Protection Day (28 January) it seems like an opportune time to share this with you .

TOPICWEBSITE
EU HandbookHandbook European Data Protection Law
The Information Commissioner’s Office (ICO) Guide; ICO is the UK’s supervisory body set up to uphold information rightsICO Privacy Guide
EU Privacy Legislation on EUR-lexGDPR 2016 easy layout GDPR
Charter of Fundamental Rights of the European Union 2016
Directive on Privacy and Electronic Communications 2002
Convention for Human Rights 1950
UK LegislationData Protection Act of 2018
Privacy and Electronic Communications (EC Directive) Regulations 2003
The Human Rights Act 1998
Summaries of privacy case lawFRA Case-law Database Companion for the gdpr professional
European Data Protection Board Guidance which contributes to the consistent application of data protection rules throughout the European Union, and promotes cooperation between the EU’s data protection authoritiesEDPB Guidance
National Cyber Security Centre Guidance which was set up to help protect our critical services from cyber-attacks, manage major incidents, and improve the underlying security of the UK Internet through technological improvement and advice to citizens and organisationsNCSC Guidance
The Internet Advertising Bureau Guidance in relation to digital advertisingIAB Guidance
Direct Marketing Association (UK) Ltd (DMA) in relation to advertisingDMA Guides
Webinars worth watchingGDPR Legal Facts And a Call to Action
ICO Personal Data Breach Reporting
DPN- Cookies:GDPR & e-Privacy
DPN- Legitimate Interests
https://www.radarfirst.com/resources/webinars/
Newsfeed / website worth signing up toLexology so that you can access to article like: 5 Things You Should Know About Data Protection Impact Assessments under the GDPR or How Direct Marketing is Impacted by GDPR and PECR
Data Protection Network which posts interesting articles
DMA so that you can access to articles like: eprivacy-regulation-what-will-it-change?
Vlogs worth checkingKemp IT LAW
Blogs worth checkingGiovanni Buttarelli’s blog
DLA Piper
Association worth joining although there is an annual membership feeIAPP

Useful articles: GDPR and the relationship between clients, contractors/ temporary workers, recruiters and umbrella companies

Published by Alisha McKerron 19 November 2018

I found the two articles mentioned below interesting reads, because they each ask a similar question in relation to a specific situation. My article, When is a Data Processing Contract Required? is more general. Also interesting, is the practical implications of being a data processor which I omitted to discuss in my article, GDPR is Coming: 7 Steps Processors Need to Take to be Compliant.  I chose to highlight the regulatory position.

The first article, Is a Contractor a Processor Under GDPR?, written by John Thompson asks the question Is a Contractor a Processor under GDPR? Unable to find any official guidance and having considered both sides of the argument, John concludes that contractors are data processors.

The second article,What May Compliance With The GDPR Require of Entities Who Use Temporary Workers From Recruitment Agency to Process Personal Data? written by Emmanuel Lazarididis, supports the first article. The second article looks more closely at the relationship between clients, recruitment agencies, umbrella companies and their workers and concludes that an umbrella company is a data processor and as such should sign a data processing agreement.

What I Learnt at The November 2018 Executive Leader Network Privacy/GDPR Conference in Reading

Published by Alisha McKerron on 15 November 2018

DSC_0010 

My head was swirling with data privacy thoughts, when I left the Executive Leader Network Conference in Reading, last week. Not bad considering, I had arrived with an impenetrable head cold, which showed no signs of easing as the afternoon progressed.

By midmorning I had listened to three talks and a panel discussion with another two talks squeezed in before lunch. By the end of the day, my final tally was 9 talks and one panel debate. I certainly got my money’s worth, but would I remember all that I had learnt? Not without making some notes!

Below are the topics of each talk I attended and some information about the talks.

  1. What makes an ideal DPO?

I learnt from Christel Cao-Delebarre, that data subjects are lodging more complaints than ever. Although a company may not be obliged to appoint a data protection Officer (“DPO”), companies should consider volunteering one. Why? Because a DPO is a key contributor to transformative corporate changes, a key partner for end-user satisfaction and a key representative of the company for the EU and for non EU supervisory authorities. 

I agree with this approach, although I wonder if it would be prudent to give the office the title of Privacy Manager, in the voluntary instance. This would distinguish the office from a mandatory appointment, and allow for flexible compliance with DPO, Data Protection Regulations (“GDPR”).

When considering whether a DPO is mandatory, we should bear in mind that processing employee data or financial data is excluded from the test.

  1. The Ultimate Guide to New ePrivacy Regulations: Cookie Consent, DNT, and Online Tracking Technologies

Next up was Elliot Cranmer to talk about up- coming changes to the Privacy and Electronic Communications Regulations (“PECR”), which regulates the use of cookies in the UK.

PECR is due to be replaced by a European Regulation (“ePR) but no one knows when exactly this will happen. Although Parliament has agreed its version, the Council of Ministers has yet to agree theirs. It may be some time before the Commission, Parliament and the Council of Ministers will be able to enter a trialogue debate to agree a final version.

PECR requires for use of cookies: i) the provision of clear and comprehensive information about any cookies being used; and ii) consent to store a cookie on the users or subscriber’s device. These requirements fall away for cookies that are essential to provide an online service at someone’s request (e.g. to remember what’s in their online basket, or to ensure security in online banking).

GDPR has necessitated a higher standard of disclosure and consent in relation to cookies. Data subject are being made aware of cookies via banners. A common approach now is to categorise cookies and get consent for each, while also allowing easy withdrawal of consent.

The new ePR will apply to machine communications. It will extend the requirement of obtaining consent for storing cookies, to the processing of personal data used for tracking. It will address issues around ad-blocking and Wi-Fi location tracking. It will shift the focus from website cookie banners to users’ browser settings.

It will also tighten the rules on marketing, with the default position being that all marketing to individuals (whether a private individual (B2C) or an employee (B2B)) by phone, text or email must be opt-in. (At the moment direct marketing emails can be sent to employees working for corporates (B2B) or public authorities without consent, on an opt-out basis). In other words the new law will align B2B marketing with B2C.

The advertising industry is up in arms. If adverts are blocked because consent to tracking has been denied, it will strip European publishers of the right to monetize their content through advertising. The only other way publishers will be able to monetize content is to start charging consumers. Some publishers have begun doing this. Others have made their websites inaccessible to the EU.

The Interactive Advertising Bureau (“IAB”) is lobbying for an inclusion of a legitimate basis as a way round consent.

  1. Panel Discussion

GDPR is Here to Stay

According to the panel one of the biggest mistake’s companies are making, is to underestimate the ongoing importance of GDPR. GDPR policies need to become part of businesses’ DNA.

ePR and Consent

 At first, I found the comments the panel were making about consent, contradictory: either is was needed for direct marketing, or it was not. Once I realised the importance of distinguishing between businesses and individuals and which channel of marketing is being used (mail/ sms, phone/fax or post) things became clearer. So that you don’t fall into this trap the position is: consent is not required for marketing emails or texts to businesses (i.e. first name.last name@company.com), so long as there is a lawful basis together with an opt out. (Apparently, it is good practice to keep a ‘do not email or text’ list of any companies that object). Consent is required for marketing emails or texts to individuals although there are some exceptions (see below).

If the ePR comes into effect, consent will be required for the processing of electronic personal data used for tracking. This requirement will have a catastrophic effect on the advertising industry because it relies on the processing of this type of personal data. The Direct Marketing Association (“DMA”) is lobbying hard to have an exception included.

Direct Marketing Emails

The DMA has had past success in lobbying for changes in draft laws. It managed to get an exception to the rule that individuals must have given their consent to received direct marketing emails. If the individual is a previous customer and the marketing is in relation to a similar product, consent is not required, because there is a ‘soft opt-in.

It is also important to distinguish between informative emails and advertising emails. I am not persuaded by the argument that no consent is required in the instance of an informative email which has a bit of advertising in it.

Legitimate Interest and Marketing

If e-privacy laws do not require consent, legitimate interests may be relied on. For example, direct marketing by post. This seems to have been lost in translation post GDPR.

 Data Subjects Right to be Informed

Data subjects have the right to be informed via a privacy notice whenever their personal data is being processed. This is still the case, if personal data is sourced from the public domain or if public personal data is aggregated with private personal data. This is especially relevant to recruitment agencies.

 Data Processors and Data Controllers

The role of data processors and data controllers is more equivalent. It is important to always be considering the risks associated with processing personal data and potential harm to data subjects.

Provenance of Personal Data

Companies must know the provenance of third-party personal data i.e. where it comes from, how it was collected, the legal basis for collection, whether the data subjects have been correctly informed etc. Consider whether the communication made at collection is sufficient further down the line. If data has been improperly collected, it may damage a company’s branding. Sellers of personal data need to be careful who they sell to, for example Life Cycle Marketing (Mother and Baby) Limited was fined for selling personal data to a political party.

  1. Email Marketing in a Post – GDPR World

 Jenna Tiffany took us back in time, when the first Nokia mobile phone came on the market. She pointed out how much has changed since then. She observed, that the GPPR journey thus far has been an emotional one, beginning with denial, and ending with acceptance with everything in between.

What we should not lose sight of, is the consumers desire to protect their personal data and the importance of building up a relationship of trust. Some companies have understood this better than others and been more successful in rolling out their new GDPR policies. They have used this to differentiate themselves from their competitors.

We should view the changes in privacy law as a wonderful marketing opportunity to strengthen our relationship with our customers.

  1. Privacy, Compliance in a Fast-Changing Landscape

Ivana Bartoletti extolled the virtues of good governance with sound data protection policies. For example, policies which will trigger Data Protection Impact Assessments (DPIA) analysis. The policies should set out how DPIA’s should be done and by whom and how frequently they should be reviewed. Ivana suggested preparing a matrix of criteria using WP248 as a source. Only two criteria need to be met. Ivana discussed other tools including data minimisation (do I really need this data?), threat analysis (what is the harm on the data subject?), privacy by design and default and procedures in place for data breaches.

  1. Life after GDPR….. Accountability Transparency and What is Still to Come

Towards the end of the lunch break, Christine Andrew gave us 6 tips about life after GDPR.

  • Don’t Panic: Not everyone is GDPR compliant
  • Check Breach Management

The Information Commission (“ICO”) is only really concerned with systematic breaches rather than individual breaches. If ICO does not respond quickly it is almost always good news. Complaints have increases and so ICO has had to prioritise more severe breaches over less severe. What is important is that businesses are able to show that they have clear internal processes to pick up every breach, no matter how minor. Look at ICO’s webcast on How to Report Data Breaches

  • Subject Access Reports

 Subject accesses reports are nothing new and are best dealt with by engaging with the data subject to determine their motivation. Are they a vexatious employee or do they no longer want to receive direct marketing?

  • Make sure you know where all personal data is processed
  • Audit third parties

Companies should ensure that third party processors which are processing personal data on their behalf, have been audited. Check that there is continual data mapping and that correct records of processing are being kept.

  • Rate yourself

 Use ICO’s Guide to Audits to understand what  evidence (existence of committees, minutes, risk register, PIA’s, staff training, art 30 records etc)  CO will be looking for and what controls they would expect to see in place.

  1. Creating a Culture of Privacy Compliance

Ben Westwood spoke about creating a culture within a business of privacy compliance. The first thing a business needs to do is set about defining its mission. ICO’s mission statement is a useful precedent to look at. Next is getting everyone on board from senior management right down to a single contact person. Seeking endorsement and support is crucial. Proactive engagement is necessary. DPO’s should seek out an audience via privacy events, training, information lunches and competitions. Adopting an open-door policy and appointing brand ambassadors should help too. They must introduce a methods of demonstrating compliance, for example how many subject access requests the business has dealt with. A record of data processing is essential. ICO’s template is a useful tool. Another very useful tool is the guide created by the American Institute of CPAs and the Canadian Institute of Accountants with help from ISACA. It is based on the Generally Accepted Privacy Principles (GAPP) and aims to assist organizations in strengthening their privacy policies, procedures and practices.

  1. Breach Markers: How to be Certain that Your Data Has Been Breached and Know Where the Breach Originated

Jeremy Hendy extolled the virtues of breach markers particularly when a business’s personal data sits on a third party server outside the businesses control.

  1. Can Email Marketing Survive GDPR?

Dean Seddon went to great lengths to correct the misconception that direct marketing emails can no longer be used without consent. This is only the case in relation to B2C direct marketing emails. PECR does not require consent for B2B direct marketing emails. Legitimate basis can be relied on instead so long as there is an opt out. ICO’s guide explains when this legitimate interest may be relied on.

Direct marketing’s biggest challenge is consumers ire and the work of trolls. Consumers may have forgotten that they opted in to direct marketing emails or may not have fully understood what they were consenting to. Full disclosure is essential. It’s also important to develop a policy on how to handle complaints to prevent brand damage further down the line.

  1. Defence Against Malicious Data Subject Requests.

Shane Reed explained the various steps business should take upon receipt of a data subject request. The first step is to alert all the various departments that may be involved and complete an office 365 search in share point. Next identity of the data subject. Bear in mind that you have 30 days to respond. If business have a clear data retention policy designed to minimise personal data this should reduce the amount of personal data that may need to be handed-over.