Individual Privacy Rights: Quick Guide We all have privacy rights, we should be told about our rights and organisations need to be ready to fulfil them. Some rights are more commonly exercised than others. Some organisations routinely receive multiple requests, while others only get a handful. But even if your organisation has never received a privacy rights request, it pays to be prepared. The eight privacy rights are: The right to be informed The right of access The right to rectification The right to erasure The right to object The right to restrict processing The right to data portability Rights in relation to automated decision making and profiling. It’s the responsibility of organisations acting as controllers to fulfil privacy rights requests, with their processors assisting, as necessary. (Controller or processor?) Here are some key actions organisations need to take (by no means an exhaustive list): ⏹ Notify Tell people about their rights and how to exercise them; routinely achieved via a privacy notice. ⏹ Training & awareness Make sure employees understand what rights people have, and importantly what to do if they receive one. Overlooked or missed requests could result in unwelcome complaints. ⏹ Specialist skills Make sure those staff responsible for fulfilling requests have appropriate skills and knowledge. ⏹ Privacy by Design Build systems and processes with privacy rights in mind. Make sure legacy systems are also fit for purpose. Can data be easily retrieved, amended or deleted? ⏹ Procedures Implement robust procedures for handling requests, bearing in mind each right has different requirements and nuances to consider. ⏹ Log Keep a log of all requests received and their status. ⏹ Complaints Tell people of their statutory right to lodge a complaint with a data protection authority (e.g. the UK’s Information Commissioner’s Office). Summary of individual privacy rights (Please take any use of the term GDPR to mean the EU version and UK GDPR) 1. The right to be informed This right is closely aligned with transparency requirements; organisations must be open and upfront about how they’re using people’s personal data. GDPR sets out specific information which must be provided to inform people. Whenever personal data is collected people must be told the purposes it will be used for, who it will be shared with, how long you are likely to keep it and so on. This is why privacy notices are so important. They should cover legally required privacy information, and be at hand when people provide you with their personal data. The right to be informed also applies when personal details are acquired indirectly from another source, not directly from the individual themselves. For more detail, see the ICO Right to be informed guidance. Tip: In most circumstances this right will apply, but it isn’t an absolute right. It doesn’t need to be fulfilled where doing so would prove a ‘disproportionate effort’, or in circumstances where it conflicts with another statutory obligation, for example an obligation of secrecy. 2. The right of access Commonly referred to as a Data Subject Access Request – DSAR/SAR. This gives people the right to receive a copy of their personal data, plus other supplementary information. A third party (such as a relative or solicitor) can make a request on behalf of another person. Requests must be fulfilled at the latest within one calendar month. The time period for responding can be extended for particularly complex cases. Some DSARs are relatively straightforward, while others can be tricky and nuanced to fulfil, with careful judgement calls to make. You can only refuse to provide information if an exemption or restriction applies, or if you judge a request to be manifestly unfounded or excessive. For more information about how to prepare and fulfil requests, see our DSAR Guide. Tip: It’s not a right to documentation! Just because someone is referenced in an email or document, doesn’t mean the whole email chain or document is their personal data. 3. The right to rectification If someone realises the information you hold about them is inaccurate or incomplete they can request it’s corrected or completed. Organisations have up to one calendar month to respond. Tip: This isn’t an absolute right, and in certain circumstances you can refuse a request, if you dispute the accuracy of what the individual is claiming. 4. The right to erasure As the name suggests, people have the right to request their personal data is erased from your systems and physical records if you no longer have a compelling lawful reason to keep it. This applies to ALL systems, back-ups and even data held in the cloud. It will apply if the personal data is no longer necessary or a person withdraws their consent. It’s also sometimes referred to as the ‘Right to be Forgotten’, in an online context. As with some other rights, you must respond within one calendar month. Even if you lawfully refuse to comply with a request (either in part, or in full), you must still respond to the individual and explain why you can’t delete their data. In some cases this right can be relatively straightforward to fulfil if you have limited records for an individual and no reason to keep them, but equally important is making sure you don’t inadvertently destroy personal data you should have held on to. This is where having a clear data retention schedule can be really helpful, so you can easily identify where you have lawful justification for not erasing personal data. Tip: See our 10 tips for managing erasure requests. 5. Right to object People have the absolute right to object to their personal details being used for direct marketing. Such objections must be honoured in every case. When personal data is used in other ways, people have the right to object to how their information is being processed, but you don’t have to fulfil this right if you can demonstrate compelling legitimate grounds to continue the processing. Again, you have one calendar month to respond to an objection, and must inform people if you are denying their request, along with your justification. 6. The right to restrict processing In our experience this right, which gives people the right to restrict your processing of their personal data, is less commonly exercised. But if you receive a request, you can store their data but not use it. Routinely this would be for a limited time period. This right can be closely associated with other rights such as the right to object or a rectification request. For example, someone might exercise this right if they’re disputing the accuracy of information you hold about them, or objecting to you using their data for a particular purpose. Also see the ICO Right to Restrict Processing Guidance 7. The right to data portability This right allows people to easily reuse the personal data you hold about them for other purposes, including requesting it’s transferred to another organisation. (In many sectors data portability requests are rare). This right only applies when your lawful basis for processing the individual’s data is either consent or performance of a contract, and where your processing is automated. The right doesn’t apply if the processing is necessary for a task carried out in public interests or when exercising power from an official authority. Also see the ICO’s Data Portability Guidance. Tip: It’s worth noting the right to portability applies to data relating to an individual’s behaviour, and could include location data, website history and more. 8. Rights related to automated decision-making including profiling. People have the right not to be subjected to solely automated decision-making (including profiling) which has a legal or similarly significant effect. For a decision to be solely automated there must be no meaningful human involvement in the process. Article 22 of GDPR sets out that solely automated decision-making is only permitted when necessary for entry into performance of a contract, is authorised by applicable law or is based on the individual’s consent. Furthermore, if you’re using special category personal data you can only carry out processing described in Article 22(1) if you have the individual’s explicit consent or the processing is necessary for reasons of substantial public interests. It’s worth noting this is subject to change under the UK Data (Use & Access) Bill. Organisations are obliged to give people information about solely automated decisions (with legal or similarly significant effect), and individuals have a right to request human intervention or challenge a decision made about them. Tip: Be aware the increased use of AI tools, especially in recruitment processes, could be leading to more solely automated decisions which could have a legal or similarly significant effect. Although there are eight privacy rights, some organisations might never receive requests such as restriction or data portability. So while it’s important to be aware of them all, realistically most organisations will focus on making sure they have robust procedures for handling the types of requests they’re most likely to receive. But just remember, even if you are yet to receive a DSAR, when you do you’ll be pleased you planned for it.

GDPR RoPA simplification Will EU proposals to change Records of Processing Activities requirements have an impact in practice? As GDPR passes its 7th birthday, there’s been a flutter of excited commentary about European plans to make changes to the ground-breaking data protection law. In particular, potential amendments aimed at easing the compliance burden on small to medium-sized businesses. So far, it’s fair to say the proposed changes from the European Commission are far from earth-shattering (albeit there could be more in the pipeline). A key proposal relates to Article 30, Records of Processing Activities. The obligation to keep a RoPA would no longer apply to organisations with fewer than 750 employees provided their processing activities are unlikely to pose a ‘high risk‘ to the rights and freedoms of individuals. The proposal also clarifies the processing of special category data for purposes related to employment, social security and social protection would not, on their own, trigger the requirement to maintain Article 30 records. For comparison, the existing exception only applies to organisations with less than 250 employees, unless the processing carried out is: ⏹ Likely to result in a risk to the rights and freedoms of data subjects, ⏹ The processing is not occasional, or ⏹ The processing includes special category data or personal data relating to criminal convictions and offences. What impact might this RoPA change have? As many organisations process special category data (even if just for their employees), and processing activities are often routine, not occasional, the current exception for smaller companies is limited in scope. The proposed wider exemption would clearly apply to far more organisations. I can absolutely see why the Commission has homed in on RoPA requirements, as in my experience many organisations struggle to maintain an up-to-date RoPA, or don’t have one at all. But how helpful could this change actually be? In practice, organisations subject to GDPR will still need to assess whether their processing activities involve ‘high risk’ to individuals. To do this they will need to weigh up their purpose(s) for processing, their lawful basis, how long they keep personal data, who it is shared with, whether any international data transfers are involved, what security measures are in place and so on. It seems a bit of a catch 22 – a RoPA is a great way of capturing this vital information and clearly ascertaining where risk might occur. Alongside this, organisations will still need to meet transparency requirements and the right to be informed. And, yes you guessed it, an accurate RoPA is very helpful ‘checklist’ in making sure a privacy notice is complete. We’ve written more about the benefits of a RoPA here. Importantly, if this proposed change goes ahead, it won’t apply to organisations which fall under the scope of UK GDPR (unless the UK Govt decides to adopt a similar change). Notably, fairly significant changes to UK GDPR’s accountability requirements were on the cards under the previous Conservative Government’s data reform bill. However, seen as too controversial, these were swiftly dropped after the election in the new Labour Government’s Data (Use and Access) Bill (DUA). It’s possible the UK could regret not being more ambitious in the DUA Bill; there’s an obvious irony given oft-heard criticisms of EU overregulation – here’s a case where the EU’s easing of certain requirements could leave UK organisations with more onerous rules.

GDPR: Consent and why records are crucial The ICO has fined a telemarketing firm £90k for their inability to demonstrate valid and specific consent was collected from the people they’d contacted. Data was collected directly, via the telemarketer’s website and via a third-party survey company. Crucially, the firm couldn’t produce evidence of consent. This led me to think about other organisations; you may have gone to great efforts to make sure the consent you collect meets the GDPR standard, but are you keeping adequate records? Occasionally, the old legal adage applies – ‘If it isn’t written down, it didn’t happen.’ If your consent is subject to regulatory scrutiny, proof is highly likely to be requested. A customer might ask for evidence, and could escalate a complaint if you’re unable to produce it. So, what records do we need to keep? Here’s a refresher on the consent rules and how to retain adequate evidence. For simplicity’s sake when I refer to GDPR in this article I mean both GDPRs – the EU and UK flavours. Consent is ONE of SIX lawful bases for processing Consent is just one of six lawful bases. GDPR requires organisations to select an appropriate lawful basis for each purpose for processing personal data. They’re all equally valid; no single basis is better than another. You should choose the most appropriate basis for each activity. Often consent might not be appropriate, but sometimes consent is required by law for certain activities. Just be mindful; don’t rely on consent if another lawful basis would be more appropriate. But also be careful not to try and shoe-horn your activities into another lawful basis (such as legitimate interests), when consent really would be the best approach, or is legally required. What constitutes valid consent GDPR defines consent as “any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her”. Let’s break this down… Freely given consent ■ People must be given a genuine choice ■ People should be able to refuse to give their consent without detriment ■ Consent should be easy to withdraw ■ Consent shouldn’t be bundled into T&Cs, unless necessary for the service It’s also sometimes important to weigh up any ‘imbalance of power’ over the individual whose consent you seek. For example, consent may not be freely given if the individual feels they don’t really have a choice. Consent can therefore be tricky in employer-employee relationships, if staff might feel a degree of pressure, or feel they will be penalised or treated differently if they refuse. Specific and informed consent ■ It must be clear who people are giving their consent to. The organisation relying on the consent must be clearly identified. If you want to rely on consent collected for you by a third party, your organisations must be named at the time consent is collected. ■ Consent must specifically cover all of the purposes for which it’s being collected. Separate consent should be collected, wherever possible, for different activities. For example, collecting separate marketing consents for different marketing channels. This isn’t a hard and fast rule and isn’t required if it would be unduly disruptive, or the activities are clearly interdependent. ■ It must be clear people can withdraw their consent at any time (and the ICO advises you include details of how to do so). Remember, there’s specific information you’ll always need to provide when you collect people’s personal details. There are distinct transparency requirements and people have the right to be informed. You may choose to take a layered approach, and it’s advisable to always have a clear link to a Privacy Notice (aka Privacy Policy), or details of how to access this. Consent by an unambiguous indication and clear affirmative action Consent must be given by a deliberate and specific action to opt-in or agree. For example; an opt-in box, clicking ‘submit, signing a statement, or verbal confirmation. Failing to opt-out is not consent. Pre-ticked boxes are not consent. For more information see ICO consent guidance, which covers how to collect consent, how to manage requests to withdraw, and more. Evidence of consent GDPR states: “Where processing is based on consent, the controller shall be able to demonstrate that the data subject has consented to processing of his or her personal data.” This means, organisations must have an audit trail to meet their accountability obligations. This is what the telemarketing firm failed to grasp. In practice, this means keeping records of: ■ Who consented e.g. their name or other identifier. ■ When they consented e.g. an online time stamped record, a copy of a dated document or a note of the time and date verbal consent was given. ■ What they were told at the time e.g. a copy of the consent statement used at the time, along any separate privacy notice or other privacy information used at the time. ■ How consent was given e.g. a copy of the data capture form or a note of a verbal conversation. ■ Any withdrawal of consent, and when. This is why we recommend when your updating consent statements or privacy notice(s) keeping copies of older notices and the dates they were operative. This doesn’t need to extend to keeping copies of every web form, but records held on your CRM or other relevant system need to be accurate. The ICO guidance on keeping records of consent is a useful resource. Consent isn’t easy Collecting valid consent can feel like a minefield. It means carefully ticking off requirements and keeping evidence. This isn’t hard once you’ve established a routine and get into the habit of thinking ‘that needs keeping hold of.’ Getting this right, means you’ll breathe a sigh of relief if you’re ever subjected to scrutiny. For more detail on when consent is legally required under UK ePrivacy law for marketing activities see our guides to the email marketing rules and telemarketing rules.

International Data Transfers: When a Transfer Risk Assessment is required A recent €530 million fine, issued to TikTok by the Irish Data Protection Commission (DPC) for failing to meet international data transfer rules, demonstrates why cross-border transfers of personal data must be effectively managed. While in this case an EU fine, UK organisations are not immune to data transfer requirements, nor the potential fallout of non-compliance. Organisations need to be mindful that people risk losing their protection under UK data protection laws if their personal data is transferred outside the UK. Unless one of the following four conditions can be met, organisations must make sure appropriate safeguards are in place to protect ‘restricted transfers’ overseas: ■ You have the specific consent of individuals for the international transfer ■ The transfer is absolutely necessary to perform contract with the individual ■ You can rely on an ‘Article 49 derogation’ – where the specific transfer is necessary for important reasons in the public interest, for litigation or for a public register ■ If there’s an approved Code of Conduct between members, e.g. members of a trade association Often these conditions won’t be met, and appropriate safeguards will be necessary. In certain circumstances, there’s also a requirement to conduct a Transfer Risk Assessment (TRA). In the EU this is called a Transfer Impact Assessment (TIA) and this requirement was overlooked by TikTok. A restricted transfer is where an organisation shares personal data with another organisation (i.e. a separate controller), or to a vendor/service provider/supplier (i.e. processor) and the processing will take place in another country. This includes where overseas data sharing takes place between companies which are part of the same group of companies. For example, one based in the UK and one in the USA. When data is anonymised, so that its no longer ‘personal’ data, its not classed as restricted transfer. Both controllers and processors also need to consider any further transfers in the supply chain to ‘sub-processors’ located in other countries. Crucially, we need to recognise a ‘transfer’ will take place if there’s ‘access to’ personal data. For example: ■ A UK based controller permitting a supplier based in India to access the personal data of its customers would represent a restricted transfer. ■ A UK based processor, permitting one of their suppliers (a ‘sub-processor’) based in France to access the personal data of its client (the controller). ■ An EU based controller sharing personal data with a separate controller based in San Francisco, USA. For more detail on what constitutes a restricted transfer see our International Data Transfers Guide or the ICO Guidance. Do we need to make a restricted transfer? Before making a restricted transfer, organisations should consider whether they can achieve their requirements without sharing ‘personal’ data. If you share data in an anonymised form, so it’s never possible to identify individuals, it is no longer personal data, so the restrictions do not apply. Why did TikTok get fined? The DPC inquiry found the social media platform had infringed GDPR on the following three key points: ■ Equivalent protection: There was a failure to verify, guarantee and demonstrate that personal data of EEA users, remotely accessed by staff in China, was afforded a level of protection essentially equivalent to that guaranteed within the EU. ■ Transfer Impact/Risk Assessment: The necessary assessments were not undertaken to address potential access by Chinese authorities to EEA personal data under Chinese anti-terrorism, counter espionage and other laws, which were considered to materially diverge from EU standards. ■ Transparency: TikTok’s 2021 Privacy Policy (aka Privacy Notice) did not meet necessary transparency requirements to inform EEA users that personal data was stored in servers in the United States and Singapore and was remotely accessible by entities in a number of other countries including China, Malaysia and the Philippines. An updated 2022 Privacy Policy rectified this particular infringement. When is a Transfer Risk Assessment (TRA) required? A TRA is not always required, it depends on the appropriate safeguard mechanism an organisation is intending to rely on for a restricted transfer. Adequacy decision (Article 45): No TRA required Adequacy status is awarded to specific countries judged to have a similar level of data protection standards as those in the UK. An adequacy decision essentially allows for the free flow of personal data between the UK and the other country. The UK Government refers to these as ‘data bridges’. When you rely on adequacy, a TRA is not required. Currently there is reciprocal adequacy between the UK and the EEA. You can check which other countries have adequacy in the ICO data transfer guidance. Other safeguard mechanisms (Article 46): TRA required The requirement to conduct a risk assessment came into effect following the 2021 EU Schrems II ruling, and will apply, for example, if you intend to rely on the following safeguard mechanisms: ■ ICO’s International Data Transfer Agreement (IDTA) ■ EU Standard Contractual Clauses (SCCs) with the UK Addendum ■ Binding Corporate Rules (BCRs) What’s the purpose of a Transfer Risk Assessment? A TRA aims to help organisations to consider if the relevant protections for people under UK data protection law will be undermined when their personal data is transferred overseas. The ICO explains there are two broad types of risks to be considered: ■ Risks to people’s rights arising in the destination country from third parties accessing the information that are not bound by the Article 46 transfer mechanism, in particular government and public bodies. ■ Risks to people’s rights arising from difficulties enforcing the Article 46 transfer mechanism. It’s worth bearing in mind if a processor is making a restricted transfer, for example to a sub-processor, it’s their responsibility to conduct the TRA. A controller should still carry out reasonable and proportionate checks to make sure these transfers are compliant with UK GDPR. When onboarding a new processor, some controllers may request to see copies of their processors’ TRAs to sub-processors. More information is available in the ICO TRA Guidance. How to conduct a TRA for a transfer from the UK The ICO sets out three distinct options for conducting the risk assessment. Option 1: ICO TRA tool This is a specific risk-assessment tool. It enables you to evaluate any increased risk to people’s privacy and other human rights as a result of the transfer, comparing this with if the data remained in the UK. In our view, the ICO has gone to considerable efforts to make this (Word document) tool as straightforward as possible. It helpfully provides a list of common categories of personal information with an initial risk score. You don’t have to use this specific template and can record your answers to six key questions in other ways. However, to the uninitiated the TRA tool can be tricky to complete. If the circumstances of a specific transfer require a more detailed investigation it will involve a level of research into the legal system, respect for rule of law and the human rights record in the destination country. Option 2: EDPB approach This assessment looks at comparing the laws and practices of the UK with those of the destination country (the ‘data importer’). In particular, it means looking at the safeguards in place in relation to third party access to the information, particularly by Governments. The safeguards don’t need to be identical but need to be sufficiently similar to those in the UK. Option 3: Reliance on published UK Government analysis in making adequacy regulations As mentioned above, the UK Government can make adequacy decisions (known as ‘data bridges’). In making these decisions there are specific considerations the Government must take account of when assessing another country or territory. This includes an assessment of risks similar to the assessment which would be undertaken when using options 1 and 2. Therefore, if there’s relevant published UK Government analysis, which judges standards of data protection to be satisfactory, this can be relied upon. Notably, in 2023 the Department for Science, Innovation and Technology (DSIT) published analysis for the United States. DSIT Analysis Transfers from the UK to the United States It’s worth taking a look specifically at transfers from the UK to US. These are a common type of restricted transfer, especially for UK based organisations considering utilising the services of US based technology / SaaS providers. Adequacy: the EU-US Data Privacy Framework, plus US-UK ‘data bridge’ extension There’s an adequacy decision which UK organisations may be able to rely on, meaning a TRA is not required. However, unlike other adequacy decisions for specific countries (such as Japan, Israel and New Zealand), the ability to rely on the adequacy decision for the United States depends on whether the specific US company you are transferring data to has self-certified to the Data Privacy Framework and the UK extension to this framework. You can check if an organisation is certified here. To give some commonly used examples, at the time of writing, Google LLC, Microsoft, Salesforce and Mailchimp are signed up to the Framework and UK extension (‘data bridge’). Other safeguard measures and TRA If an organisation isn’t listed as a signatory to the Data Privacy Framework and UK extension it’s likely you’ll need to rely on the ICO’s IDTA, EU SCCS with the UK Addendum, or BCRs (for intra-group transfers). And options 1, 2 and 3 outlined earlier for conducting a TRA will be in play. I’d encourage you to read the ICO’s guidance on transfers to the US, which sets out the potential to streamline the TRA process by relying on UK Government analysis (e.g. Option 3). The ICO states: “a significant part of the analysis relates to broader issues not specific to the US data bridge but analyses the application of relevant US laws and practices more generally. It is equally relevant to personal information transferred using an Article 46 transfer mechanism.” The ICO’s guidance  sets out in more detail how you can rely on this analysis, as an alternative to using the TRA Tool or the EDPB approach. To conclude, international data transfer rules are not simple! They can often feel overly complex, with tricky compliance hurdles. Nonetheless, it’s both legally and ethically the right thing to do to make sure people don’t lose the rights they are entitled to under UK data protection law. In practice, a risk-based approach is frequently adopted, applying more rigour to more risky transfers. For example, a transfer of a list of employees’ work email addresses is unlikely to pose as much risk as transferring more sensitive personal information. As ever, the devil is in the detail.

Rising cyber threats but data breaches aren’t always obvious The UK Government and National Cyber Security Centre have issued warnings about significant and growing cyber threats, with the expectation of increased ransomware attacks, state-sponsored cyber activity and sophisticated cybercrime. Do take heed: the retail sector has already seen a number of damaging attacks. Sometimes, it’s obvious a data breach has taken place. However, this isn’t always the case, especially when cyber criminals take steps to cover their tracks. A recent example illustrates the consequences for organisations who fail to fully appreciate the significance of a malicious attack. The ICO has issued a £60k fine to law firm DPP, following a 2022 cyber-attack. The attack led to highly sensitive and confidential personal information being published on the dark web. The ICO investigation discovered lapses in IT security practices, leaving information vulnerable to unauthorised access. Hackers were able to exploit a user account which did not have Multi-Factor Authentication (MFA), enabling them to move laterally across the firm’s systems. Let’s be clear; MFA is now a must have on all relevant data systems. Announcing the fine, the ICO said; “DPP only became aware of when the National Crime Agency contacted the firm to advise information relating to their clients had been posted on the dark web. DPP did not consider that the loss of access to personal information constituted a personal data breach, so did not report the incident to us until 43 days after they became aware of it.” A personal data breach is defined as ‘a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data.’ That’s a broad scope. The ICO enforcement notice accepts actions taken by the attackers made DPP’s response to the incident difficult. Unfortunately, DPP’s initial assessment indicated no personal data had been exfiltrated and didn’t consider loss of access to personal data to be a breach – therefore the firm didn’t report it. You can check out the full enforcement notice, but bear in mind it’s reported DPP disputes some of the ICO’s conclusions and may appeal. Any organisation suffering a cyber-attack has my sympathy. Attacks are becoming more frequent, sophisticated and harder to track. They can severely disrupt day-to-day operations. Ascertaining the cause and consequences of an attack can be difficult. Indeed, in some cases the consequences might never be clearly established. And when it becomes public knowledge the organisation needs to work decisively, not just to get operations back up and running and mitigate any harms to those affected, but also manage PR. As I write, we’re witnessing M&S battle a significant ransomware attack, which has left store shelves empty. Cyber criminals have also reportedly told the BBC their attack on the Co-op is more serious than the company had previously admitted. Organisations are legally required to report personal data breaches to the ICO (or another relevant Data Protection Authority) within 72-hours of becoming aware, unless there is unlikely to be a risk to individuals. When it comes to ransomware attacks, it may be best to assume that (more likely than not) personal information is affected. The ICO states in a research paper; ‘If you become a victim of ransomware, you should assume the information has been exfiltrated (extracted).’ In other words, it would be wise to submit an initial data breach report. It’s understood you won’t know all the facts immediately and you may need to bring in digital forensics expertise. In this situation, you can submit an initial report and update the Regulator when more facts become known. The risk can subsequently be upgraded or downgraded as you continue your investigations. We’ve written more about how to assess the risks posed by a data breach here. It’s important, even for small-to-medium sized businesses, to have sufficient knowledge about what constitutes a personal data breach, and the threats we all face. Here’s a refresher of some common ways a personal data breach can occur. Cyber security incidents We often hear about ransomware attacks where hackers gain unauthorised access to databases, exfiltrating or altering personal information, and making a demand for payment. There are also other forms of malicious attack, such as; ■ Brute force – this is where hackers use algorithms to ‘guess’ username and password credentials, testing multiple combinations to try to gain access to user accounts. It’s understood this is how hackers initially got into DPP Law’s systems. Clearly, these attacks are more successful when passwords are easy to guess and when MFA is not in place. ■ Denial of Service (DOS) – this works by overloading a computer network or website and can result in a degrading of performance, or render the system completely inaccessible. DoS attacks may result in full or partial loss of access (availability) to personal data records. And as we said above, that’s classed as a data breach. ■ Supply chain attacks – these attacks target vulnerabilities in third-party services your organisation is using. In 2023 the BBC, British Airways and Boots were among many organisations impacted by the well-publicised MOVEit supply chain breach. More recently the ICO issued a £3 million fine to an IT software company which provided services to many UK organisations including the NHS. ■ Phishing – this is when criminals use scam emails to trick people into clicking on a malicious link. Phishing attacks can trick people into sharing sensitive information, such as payment card details or login credentials. As well as email, phishing can be spread via text messages or over the phone. I’d urge you to read the ICO’s Learning from the Mistakes; which provides detailed information on the types of cyber-attacks organisations can suffer and ways to mitigate the risk. Loss or theft of devices or hard copy documents This is pretty self-explanatory; a smartphone, laptop or other device containing personal data is lost or stolen. When devices are not encrypted this can lead to the exposure of potentially sensitive personal information. Alternatively, a data breach can occur when physical documents are lost or stolen. Disclosure of personal information This type of incident can occur in a number of different ways, for example; ■ An email sent to the wrong recipient(s). ■ Accidentally using the CC field in emails for multiple recipients, thereby revealing their email address to all recipients. In some cases this can just be embarrassing, but in others like the Central YMCA breach much more serious. ■ Information is posted to the wrong person, such as a hospital sending medical records by post to wrong recipient. ■ Publishing confidential information on a public website. ■ Sharing personal data with unauthorised third parties. Unauthorised Disclosure This type of incident may occur due to a malicious attack such as ransomware, or it may be an insider breach, as illustrated by these cases; ■ In 2023 two former Tesla employees leaked confidential and personal information relating to employees and customers. ■ Back in 2014 a Morrison’s employee leaked his colleagues’ payroll details in what was seen as an act of revenge after being given a verbal warning. A case which resulted in years of legal wrangling over whether Morrison’s was liable for the actions of a rogue employee. This type of incident also includes ‘employee snooping.’ For example, a member of staff with access to a customer database browses the personal data of others without a legitimate business purpose. Or a police officer or council official looks up and discloses information without authority. Improper disposal of records Insecure disposal of electronic or paper records might lead to a data breach. For example, if a company disposes of old paper files containing customer details without shredding them, and a third party finds them. The above is by no means an exhaustive list, but provides those less experienced in data breaches with a steer on what risks to be aware of. Not all security incidents will be personal data breaches; they could involve commercially sensitive information, but no personal data. While these don’t need to be reported if they meet a certain threshold, they still have the potential to cause considerable fallout. Privacy violations In other circumstances there may be a violation of data protection law, which is not a data breach. As an example, I’ve been asked before whether it’s necessary to report an email marketing campaign accidentally sent to customers who’ve unsubscribed as a breach. While a clear violation of the right to object to direct marketing, this doesn’t represent a breach of security: there’s been no destruction, loss, alteration, unauthorised disclosure of, or access to personal data. The individuals’ personal data remains secure. Efforts therefore need to focus on trying to minimise the risk of complaints escalating, and making sure this never happens again. To conclude, the DPP Law case is instructive; it’s not a big company, employing less than 250 people, but handles highly sensitive information relating to their clients. The attack suffered sends a clear message; any business can fall victim to cyber-attacks and personal data breaches. The more sensitive the data your organisation handles, the more damaging a breach could be. Not only must cyber security be treated as a priority, but so are robust data breach procedures to guide your team through any potential attack.

ICO fines software company £3millon after cyber-attack First UK processor fine is a stark reminder of supply chain risks The Information Commissioner’s Office has fined Advanced Software Group Ltd (Advanced) £3.07 million following a cyber-attack in 2022 which put the personal information of nearly 80,000 people at risk. This marks the first fine issued under UK GDPR to a processor. Advanced, which provides IT and software services to organisations including the NHS, was found to have failed to implement appropriate technical and organisational measures to protect its systems. In the ransomware attack, hackers managed to access certain systems of Advanced’s health and care subsidiary. This was done via a customer account, which notably did not have Multi Factor Authentication (MFA). The attack caused massive disruption to critical NHS services and healthcare staff were left unable to access patient records. Advanced was found to have insufficient measures in place, including; ■ Gaps in deployment of Multi Factor Authentication ■ A lack of mature vulnerability management scanning mechanisms ■ Inadequate security patch management A provisional fine of £6.09million was reduced to £3.07million after Advanced’s proactive engagement with the National Cyber Security Centre, the National Crime Agency and the NHS. Advanced has agreed to pay the fine without appeal. You can read the ICO enforcement notice here. Key learnings from this case This action serves as a timely reminder for both controller organisations and service providers to make sure robust measures are in place to protect personal data and ensure systems are secure throughout the supply chain. Supplier due diligence While this fine has been imposed on a processor, organisations which engage other parties to provide services have a duty to make sure they work with suppliers who can demonstrate robust standards in data protection and information security. In our experience, controllers need to make sure they’re asking the right questions before they onboard any new supplier who’d be processing personal data on their behalf – whether this be cloud computing providers, SasS solutions or other technology providers. To give a simple illustration; ■ Do they have a DPO or another individual in the business who oversees data protection compliance? ■ Do they have an Information Security Officer, or other related role? ■ Can they provide evidence of data protection and info sec policies and procedures? ■ Have they experienced a data breach before? ■ What information security measures do they have in place? ■ Are security measures regularly test, and how? Suppliers for their part need to be prepared to meet client’s due diligence requests, including being able to provide detailed information of data location(s) and security measures and controls in place to protect client data. We’d stress a proportionate risk-based approach should be taken to this, the more sensitive the data the more robust the checks should be. Seven quick information security tips 1. Restrict access to your data and services and use Multi Factor Authentication where possible 2. Choose secure settings for your network, devices and software 3. Protect yourself from viruses and other malware 4. Keep your devices and software up to date 5. Keep logs and monitor them 6. Restrict or prevent use of USB / memory drives 7. Back up your data The ICO has published ransomware and compliance guidance which provides information on how to best protect systems. Controller-processor contracts Once satisfied with a prospective supplier’s approach to data protection and information security it’s then vital to make sure contractual terms cover core requirements under UK GDPR. Often covered in a Data Processing Agreement/Addendum, these shouldn’t be overlooked. We’ve written about supplier agreements here. It’s worth noting liability clauses in such agreements are facing increasing scrutiny, reflecting the increased cost of non-compliance and the fall-out from data breaches. Irina Beschieriu, Deals Counsel for Atos IT Solutions has written an interesting article on this for IAPP and says; “General limitations of liability clauses are no longer considered sufficient to address the specific risks associated with data privacy. Instead, we have seen the rise of dedicated provisions meticulously crafted to address data privacy liabilities specifically. Negotiations surrounding these provisions are now more intense, more detailed, and carry higher stakes than ever before.” See: The growing burden of data privacy liability in tech contracts While ICO fines are not commonplace, we’d urge both controllers and processors to take heed of this action. In announcing this enforcement action Information Commissioner John Edwards says; “With cyber incidents increasing across all sectors, my decision today is a stark reminder that organisations risk becoming the next target without robust security measures in place. I urge all organisations to ensure that every external connection is secured with MFA today to protect the public and their personal information - there is no excuse for leaving any part of your system vulnerable.”

DPIAs: how to get organisational buy-in Data Protection Impact Assessments (DPIAs) can get a bad rap. Project managers, team leaders and others may not understand them, complain they’re too onerous to complete or say they ‘slow things down’. The result – data protection risks may not be identified or mitigated. Assessments may get overlooked, conducted in a less than thorough way, or get started but remain incomplete. To banish the negative vibes we need to shout about the benefits of DPIAs. Make sure relevant teams know what they are, when and how to conduct them, and most importantly make sure the process is clearly explained and straightforward to follow. When used well in the right situations, they can be one of the most useful tools in your organisation’s data protection toolkit. It can’ be stressed enough – DPIAs help to identify, assess and tackle risks before they see the light of day. They help you meet you protect the rights and interests of your customers and employees, protect your business reputation, meet your GDPR accountability obligations and demonstrate how you comply with data protection laws. Let’s take a look at how we breathe new life into the DPIA process. But first a quick recap on what the law requires… When DPIAs are mandatory Sometimes there’s no choice and a DPIA is a ‘must do’. Under GDPR/UK GDPR it is mandatory to conduct a DPIA when projects are likely to represent a ‘high risk’ to those whose personal data is involved. The law gives us three examples: ■ Large scale use of special category data ■ Systematic and extensive profiling with significant effect ■ Public monitoring on a large scale The above activities are far from routine, so thankfully the UK’s Information Commissioner’s Office (ICO) and other European Data Protection Authorities have published their own lists of processing ‘likely to result in high risk’. For example, the ICO sets out the following: 1. Using innovative technologies or the novel application of existing technologies (including AI). 2. Any decisions which could lead to denial of service; processing which makes decisions about an individual’s access to a product, service, opportunity or benefit which is based to any extent on automated decision-making (including profiling) or involve processing special category data. 3. Large-scale profiling of individuals. 4. Any processing of biometric data, where this is used for identification purposes. 5. Any processing of genetic data (unless by an individual GP or health professional for the provision of health care directly to the person concerned). 6. Combining, comparing or matching personal data gathered from multiple sources. 7. Any invisible processing – this is where personal data is not collected directly from individuals, and they are not aware of how it’s being used (i.e. the effort of providing privacy information to individuals would be disproportionate). 8. Tracking individual’s geolocation or behaviour. 9. Targeting children or other vulnerable individuals. 10. Risk of physical harm – where a personal data breach could jeopardise the physical health or safety of individuals. For more detail please see the ICO DPIA Guidance. How to assess ‘high risk’ DPIAs aren’t required for every new or change of activity and insisting teams undertake them too often can turn them into a needless box-ticking exercise and can feed into a general air of malaise. Judgement calls need to be made to assess ‘high-risk’ and ‘large-scale’ and a method for evaluating where the threshold falls. This will differ depending on sector, nature of data handled, organisational risk appetite and so on. Regulated sectors, such as financial services and telecoms, have more to think about and may adopt a cautious approach. Also, bear in mind a DPIA can be a helpful risk assessment exercise even when a project doesn’t fall under the mandatory requirements. Adopt a screening process In my experience, embedding a straight-forward screening questionnaire is a great way to effectively sift through change projects and decide which need a more detailed assessment and which don’t. You can either ask teams to complete the questionnaire, or set aside 30 minutes to lead them through the screening. Then the DPO or data protection leader can make the call. A screening process may include questions such as: ■ What does the project /activity hope to achieve? ■ What personal information is involved? ■ Does this include more sensitive data (like financial details) or special category data? ■ Where did we source the data from? ■ Does the activity involve children’s data or others who would be considered vulnerable? ■ Will data be shared with other organisations? ■ Could what we’re doing be considered innovative or cutting edge? ■ Are we using personal details for a new purpose? This is not an exhaustive list, there are other pertinent questions to ask, but try not to make it too long. Engage with your teams First rule of DPIA Club is… we MUST talk about it! Build relationships with the people who ‘do new stuff’ with your data. The people who run development projects and the key stakeholders – such as heads of the main functions which process personal data across your business, e.g. Marketing, Operations, HR, etc. If you have a Procurement team, then target them too. Ask what projects they have on the horizon which could affect the way personal data is used. The aim is to make them aware of DPIA requirements and ask them to give you an early ‘heads up’ if they are looking to onboard a new service provider or use data for an innovative new project. Let them know tech projects and system migrations almost always involve some form of personal data processing or other. They should be mindful of the potential for this to lead to privacy risks. If they think about data protection from the outset it will save valuable time and money in the long run. Save unwelcome hiccups along the line. Give them examples of how things have gone wrong or could go wrong. You could raise awareness across the business using your intranet, email reminders, posters, drop-in clinics … whatever it takes to get the message across. ‘Training’ sessions with key stakeholders can also really help to enhance their risk assessment skills. Use a good DPIA template In my opinion too many businesses use complex and jargon-filled DPIA templates, which many people find hard to understand. They ask questions in ‘GDPR-talk’ which people find hard to grasp and answer, and they often don’t really help people to identify what privacy risks actually look like. Take a look at your DPIA template with fresh eyes. If you don’t like it use a better one, or adapt it to fit your business ways of working. Be prepared for Agile working Many development projects use Agile methodology; breaking projects into smaller manageable cycles called sprints. These allow teams to adapt quickly to changes and deliver incremental gains more quickly. This means adapting your assessment approach. You won’t get all the answers you need at the start. Stay close to the project as it evolves and be ready to roll your DPIA in line with scheduled sprints. I hope this has given you some ideas for how to engage your colleagues and freshen up the DPIA process. Dispelling the myth DPIAs are a waste of time, too complex or too onerous is a fight worth winning.

Online services face scrutiny over use of children’s data The importance of compliance with the UK Children’s Code Social media platforms. Content streaming services. Online gaming. Apps. Any online services popular with children carry an inherent privacy risk. Along with growing concerns over protecting them from harmful content, there’s an increasing focus on children’s privacy. Beyond the companies you’d expect to be impacted, it’s worth remembering these issues can affect a growing number of other organisations. We know children are being exposed to inappropriate and harmful content. Some content is illegal like child sexual abuse images or content promoting terrorism, but other material can still cause harm. Such as content promoting eating disorders, or content which is inappropriate for the age of children viewing it, or is overly influential. The Information Commissioner’s Office (ICO) recently launched an investigation into TikTok, amid concerns at how the platform uses children’s data – specifically around how their data is used to deliver content into their feeds. The regulator is also investigating the image sharing website Imgur and the social media platform Reddit, in relation to their use children’s data and their age verification practices. These investigations are part of wider interventions into how social media and video sharing platforms use information gathered about children and the ICO say it’s determined to continue its drive to make sure companies change their approach to children’s online privacy, in line with the Children’s Code, which came into force in 2021. This all serves as a timely reminder of the need to comply with this Code. What is the Children’s Code? The Children’s Code (aka ‘Age-Appropriate Design Code’) is a statutory code of practice aimed at protecting children’s privacy online. It sets out how to approach age-appropriate design and gives fifteen standards organisations are expected to meet. These are not necessarily technical standards, but more principles and required privacy features. Who does the Children’s Code apply to? A wide range of online services are within scope, including apps, search engines, online games, online marketplaces, connected toys and devices, news and educational sites, online messaging services and much more. If children are ‘likely’ to access your online service(s), even if they are not your target audience, the code applies. For example, free services, small businesses, not-for-profits and educational sites are all in scope. Companies need to ask themselves – is a child likely to use our product or service online? What ages does it apply to? The code adopts the definition of a child under the UN Convention on the Rights of the Child (UNCRC) which is anyone under the age of 18. This means it applies to online services likely to be accessed by older children aged 16 and 17, not just young children. (This shouldn’t be confused with the age of consent for a child, which for online services is 13 in the UK). Who does the Children’s Code not apply to? Some public authority services are out of scope. For example, an online public service which is not provided on a commercial basis, or a police force with an online service with processes personal data for law enforcement purposes. Preventative or counselling services are also not in scope, such as websites or apps which specifically provide online counselling or other preventative services to children. However, more general health, fitness and wellbeing apps are in scope. How do you assess ‘likely to be accessed’ by a child? Crucially, the Code covers services which may not be specifically ‘aimed or targeted’ at children, but are ‘likely’ to be accessed by them. Each provider will need to assess this, and the Code provides some questions to help you: ■ Is the possibility of children using your service more probable than not? ■ Is the nature and content of the service appealing to children even if not intended for them? (Remember this includes older 16-17 year olds) ■ Do you have measures in place to prevent children gaining access to an adult only service? This assessment may not always be clear cut, but it’s worth nothing the Code states: If you decide that your service is not likely to be accessed by children and that you are therefore not going to implement the code then you should document and support your reasons for your decision. You may wish to refer to market research, current evidence on user behaviour, the user base of similar or existing services and service types and testing of access restriction measures. If you initially judge that the service is not likely to be accessed by children, but evidence later emerges that a significant number of children are in fact accessing your service, you will need to conform to the standards in this code or review your access restrictions if you do not think it is appropriate for children to use your service. This means there’s a clear expectation online services may need to have evidence if they decide they do not need to conform with the Code. The 15 standards of the Children’s Code The Code is extremely detailed. Here’s a summary of the salient points: 1. Best interest of the child – consider the needs of children using your service and how best to support those needs. The best interests of the child should be a primary consideration when designing and developing an online service. 2. Data Protection Impact Assessments (DPIAs) – these should be carried out to identify and minimise any data protection risks to children. 3. Age-appropriate application – assess the age range of your audience. Remember, the needs of children of different ages should be central to design and development. Make sure children are given an appropriate level of protection about how their information is used. 4. Transparency – UK GDPR specifically states privacy information must be easy for children to find and easy for them to understand. The Code says you should consider bite-sized ‘just in time’ notices when collecting children’s data. 5. Detrimental use of data – don’t use children’s information in a way which would be detrimental to children’s physical or mental health and well-being. 6. Policies and community standards – if children provide you with their personal information when they join or access your service, you must uphold your own published T&Cs, policies and community standards. Children should be able to expect the service to operate in the way you say it will and for you to do what you say you are doing. 7. Default settings – privacy settings for children must be set to ‘high’ by default, unless you can demonstrate a compelling reason for taking a different stance. It’s not enough to allow children to activate high privacy settings, you need to provide these by default. 8. Data minimisation – only collect and keep the minimum amount of data about children that’s necessary for you to provide your service. 9. Data sharing – do not share children’s data unless you can demonstrate a compelling reason to do so. The word ‘compelling’ is significant here. It means the bar for non-compliance is set very high. 10. Geolocation – any geolocation privacy settings should be switched off by default. Children should have to actively change the default setting to allow their geolocation to be used (unless you can demonstrate a compelling reason for this to be switched on). 11. Parental controls –make it clear to children if parental controls are in place and if children are being tracked or monitored by their parents. 12. Profiling – options which use profiling should be switched off by default (again, unless you can demonstrate a compelling reason for these to be switched on). This doesn’t mean profiling is banned, but if conducted measures should be in place to protect children from harmful effects. If profiling is part of the service you provide, you need to be sure this is completely necessary. 13. Nudge techniques – don’t use techniques which lead or encourage children to activate options which mean they give you more personal information, or turn off privacy protections. 14. Connected toys and devices – you need to conform with the code if you sell toys or devices (such as talking teddy bears, fitness bands or home-hub interactive speakers) which collect personal data and transmit via a network connection. If your electronic toys or devices do not connect to the internet and only store data in the device itself, the code does not apply. 15. Online tools – it must be easy for children to exercise their privacy rights and report concerns. The right to erasure is particularly relevant when it comes to a children. Mechanisms used to help children exercise their rights should be age appropriate, prominent and easy to use. The ICO investigations into TikTok, Imgur and Reddit should be seen as a direction of travel for us all. Going forward, they signal how the regulator intends to treat compliance around children’s online privacy, welfare and safeguarding. If your service uses children’s data even tangentially, it’s worth remembering, re-examining and considering the Code and how it might impact on your business.