Training of staff is going to be a vital investment to ensure compliance with the GDPR for many organisations, although it can also be a significant cost. It is therefore essential to make sure your organisation has a training solution that is right for them.
Following on from our first blog on data protection training, this focuses on helping to ensure you get value for money.
How Do I Chose the Best Training Option for my Organisation?
Successful data protection training programmes rely on accurately analysing and identifying the training needs of your organisation. These can be complex when implementing programmes such as those for compliance with GDPR as it can potentially involve large numbers of staff who are going to be affected by the legislation in many different ways. The points below provide an overview of the points you may wish to consider when choosing the training solution that is going to best for your organisation.
What data protection tasks require completion?
It is vital to consider this in stages, starting with preparations for the implementation of the GDPR, followed by maintenance and ongoing compliance. Are you going to require staff to develop a compliance programme, and interpret and apply the legislation within the context of the organisation? If so, any members of staff tasked with this are likely to require a considerably higher level of competence than a member of staff tasked with basic maintenance tasks once the legislation is in place. Similarly, if ongoing compliance tasks are likely to have a high degree of complexity or involving processing Special Categories of data, this should also be taken into consideration.
What is the current skills gap?
This is a fundamental consideration when considering what data protection training and support is required as you need to understand what gaps in competence require managing by a training programme. Do staff already have a good working knowledge of the DPA 1998? If so, the training may simply address the differences between existing and new legislation. If staff have very little knowledge, more detailed training to help them understand why compliance is important may be beneficial.
You should also think about the processing activities staff will undertake. Having a basic knowledge of data protection legislation may be appropriate for someone undertaking simple, basic and routine tasks involving personal data. However, it would not be an appropriate level for someone undertaking more difficult or complex processing operations, for example staff in the HR department.
To what extent will staff need to apply their knowledge?
Are business processes routine, simple and supported by tools such as IT software that limit errors? Staff engaged in this type of processing are likely to require a lower level of competence than staff involved in complex, bespoke and highly manual processing of personal information.
What are the risks associated with processing activities?
This should consider the frequency, complexity, and volume of personal information together whether it is inherently higher risk, for example, the information includes Special Categories of personal data or detailed financial information. It may also be worthwhile to conduct a data protection impact assessment for some of the highest risk processes if this hasn’t been completed previously as there may be alternative solutions to training. For example, there may be options to automate highly complex, high risk processing through systems development rather than developing data protection training for a manual process.
What ongoing support will staff have available to them in the workplace?
Once staff have undertaken training, what support will be available to them to help integrate data protection competencies into their role and make sure staff understand how to apply their knowledge in a relevant context?
How are you going to maintain levels of competence?
It is essential to maintain the levels of competence required for compliance and this is likely to require a comprehensive monitoring programme together with refresher training. The required frequency is likely to depend upon roles as well as risks associated with processing operations they undertake.
Tkm Can Help
Tkm offers a range of training solutions and can also help with conducting a training needs analysis. To discuss the options available for your organisation, including accredited foundation and practitioner qualifications, please contact us.
Data protection training is going to be an essential part of preparing for compliance with the General Data Protection Regulation (GDPR). Time is already becoming limited to develop and implement a comprehensive training programme to enable compliance with the GDPR. Furthermore, some evidence suggests that there will be a significant skills shortage and therefore the competencies required to comply with the legislation should be identified as soon as possible. Tkm can help with every stage of training planning and delivery with further information provided at the end of the blog.
Training for staff is not a new requirement to comply with data protection laws. The ICO considers training as an “appropriate organisational measure” under Principle 7 of the Data Protection Act 1998 (DPA 1998), and it is likely that the GDPR will reinforce and strengthen this requirement.
As discussed in a previous blog, the Data Protection Article 29 Working Party’s guidance on the role of Data Protection Officer (DPO) discusses competencies being commensurate with the risks associated with processing. This is likely to be a useful approach when determining all training needs of your organisation and not just those of the DPO.
It is important to ensure that your training programme delivers the best value for money. In this context, for most organisations, this means that any investment in training facilitates sustainable, long term compliance with the GDPR. Data protection training should also deliver against relevant corporate objectives.
The success of training programmes is generally determined by the extent to which training needs are accurately identified. Once identified, the next step is to develop or acquire a solution that has the best fit with those needs. This blog covers the options available and key points to consider when deciding what training would offer best value for money to your organisation.
What Data Protection Training Solutions are Available?
There are a number of different options to consider when looking for the best training solution for your organisation. These depend upon the format and content of the training, as well as the method of delivery.
Format and Content of Training
Accredited Data Protection Qualifications
There are accredited data protection qualifications although it is important to check which body is accrediting the training. It should be an organisation that is recognised as a provider of qualifications, which you should be able to check through the accreditors’ websites. Qualifications generally provide an assurance of consistency of what is going to be covered, with those completing them reaching a demonstrable level of competence. Some providers also offer flexible learning options. It is not always possible to customise accredited qualifications, particularly for intensive courses, therefore those attending need to be capable of applying the relevant knowledge to their own working environments on completion.
Customised training does not usually have accreditation although can often significantly aid implementation and integration of learning points into business processes. Training providers will often develop customised training in consultation with their clients. There is therefore likely to be an opportunity to influence the content to match your organisation’s specific training requirements. You may find that some training providers can offer a qualification that is customised to meet the needs of your organisation.
Method of Training Delivery
In house Training
The availability of this option is likely to be determined by available budget. In house can be cost prohibitive for smaller organisations although worth considering and investigating for organisations of any size. The main advantage of in house training is that there can usually be more of a focus on the organisation, for example during discussions on application, particularly around sensitive business areas. These types of topic may not be discussed at a course with general attendance. There is also typically more flexibility about how and when the training is provided.
There are a number of different types of attended training, seminars and conferences available that focus on GDPR. Whichever option you choose, you need to be confident it will be of benefit to attend. Part 2 of our blog will look at this in more detail. In the meantime, some key points to consider are:
Is the training accredited by a recognised qualifications body? This is likely to be particularly important if you are looking for attendance to demonstrate competence.
Is the event going to focus on areas that are important to your organisation? The GDPR contains a number of new legal requirements and they may not all be relevant to your organisation.
Which staff will be attending? Senior managers are more likely to require events that focus on implications of the legislation. Those responsible for practical implementation may need more detail that they can apply in their own working environment.
Consider knowledge and competencies. There are some excellent seminars and conferences being publicised. However, it is unlikely to represent value for money to attend an event that covers the theoretical side of the legislation if those attending have no competencies in interpretation and application. There are also some great events on relevant topics such as information security. These are unlikely to be benefit to those attending if they don’t have at least a background knowledge of the topic being covered.
Tkm Can Help Plan, Prepare and Delivery Your Training
Tkm is highly experienced and has developed and delivered data protection training programmes for a wide range of clients. Able to deliver both accredited qualifications and customised training, Tkm can help from the beginning of the planning process. Services include training needs analysis as well as all aspects of data protection training programme development and delivery. Tkm can help to ensure your organisation get best value for money for your investment in training staff. New, accredited qualifications in data protection are planned for later in 2017. Further details will be added to our data protection training page.
Please contact us to discuss your training requirements.
I attended a seminar last year where an organisation presented a new database that they had been developing. In my view, it was great. Genuine issues recognised by both the organisation and the sector involved would be addressed and the tool, without doubt, would facilitate better management of those issues.
As the presentation went on, however, it became clear that nobody seemed to have considered compliance with data protection legislation. In my experience, this is not unusual in the vast majority of IT projects, in particular, new system development. The system contained many features that generally prevent most of us working with data protection from sleeping at night, namely multiple uses of the dreaded free text field. These were specifically designed to allow staff to enter potentially highly subjective information about identified individuals.
There is a high probability that those who are identified either by having a dedicated record in the database or from information in the free text field will have no knowledge that information is being captured and recorded about them. In fact, I strongly suspect I have, or will have, a record in the database and as yet have not been informed about the existence of the database. Additionally, one of the purposes of recording information is to inform significant decisions about those individuals as and when required at some point in the future.
Any Processing of Personal Data Must Comply with Data Protection Laws
There are many data protection issues that the database raises including accuracy, retention, as well as rights of, and accessibility by, those identified in the information. The purpose of this blog is to highlight one further issue; the need to identify the legal basis for processing data. This is fundamental for processing to be lawful. While some processing in the database above would be justifiable, I am not clear on the legal bases that cover all processing activities.
Under the Data Protection Act 1998 (DPA 1998), to be fair and lawful (Principle 1), processing must satisfy at least one of the conditions at Schedule 2. These conditions remain essentially the same under the GDPR although organisations will be required actively inform people about the legal basis that is being used to process their data. The size of the task to establish the legal basis for all processing is likely to be significant for some organisations and should not be underestimated. With a year to go, it would be worthwhile beginning this task as soon as possible.
If you are unable to identify the legal basis and justify the processing, it is potentially unlawful. The consequences could be significant with substantial fines for breaches of the legislation. There may also be compensation claims where the information has been used to inform decisions about people when it’s capture and subsequent use was unlawful. There could also be costly and rapid changes required to non-compliant systems.
Ensuring Your Processing is Lawful
This blog is probably contains some slightly more technical jargon than others. However, the summary below covers terms that, if you are responsible for data protection compliance, you will need to become familiar with. Briefly, for processing to be lawful under the GDPR at least one of the following must apply in every circumstance (Article 6):
The person has given their consent for purposes of processing. The rules surrounding the obtaining consent are becoming far stricter and will be covered in a later blog;
The processing is necessary for the performance of a contract to which the individual is party (or in order to enter into that contract at the request of the individual);
Processing is necessarily for compliance with a legal obligation to which the Controller (the organisation responsible for the information) is subject. This must be a specific responsibility laid down by law;
Processing is necessary to protect the “vital interests” of the individual or other person. This means the processing is “essential for the life” (Recital 46);
Processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority, which should have a basis in law;
Processing is necessary for the purposes of legitimate interests pursued by the Controller, although this must be balanced with the interests and fundamental rights and freedoms of the individual. This can be a difficult condition to justify and furthermore, public sector organisations are prevented from using this under the GDPR. Public sector organisations that are solely relying on legitimate interests will need to either implement measures to ensure another applies, such as obtaining consent, or change or potentially stop their processing activities.
Many of the justifications above are similar to the existing requirements. However, under GDPR you must also provide the legal basis to people in privacy notices and included in responses to a Subject Access Requests (SARs).
The processing of sensitive personal data is also currently subject to Schedule 3 of the DPA 1998. This type of information is dealt with under Article 9 of the GDPR.
Using your information asset register, ensure you understand the legal basis for all processing activities. Remember that the justification needs to cover every potential processing activity. For example, it is likely to be justifiable for staff managing payroll to have access to certain personal finance information. In most organisations, this is likely to be justifiable under a number of the legal bases above. These could include performance of a contract, and compliance with a legal obligation where information about tax and national insurance is processed. However, that justification will not extend to those that may work in a wider finance team with no payroll responsibilities. Access (and therefore ability to process) must therefore be restricted accordingly.
It is also worth noting that the GDPR requires systems to have data protection considerations by “design and default”. Data protection impact assessments (DPIA) will become mandatory in some cases and should be conducted at the planning stages of systems projects. DPIA will be discussed further in a later blog. Begin to consider required changes to your business processes to ensure the DPIA is conducted at the right stage in any project.
Tkm can help with identifying the legal basis for processing. If you would like help with this or any other preparations for the GDPR please contact us.
With one year to go, it must be time for a GDPR checklist! It is essential to make a start on preparations for compliance with the GDPR as there is lots to do. The list below provides high level tasks that should be in your preparation programme and references the part of the GDPR that applies.
The GDPR is likely to require significant change for many organisations and you will need to do some groundwork.
Awareness raising is essential at all levels of the organisation. It is particularly important for senior management as they need to understand the scale of both change required and the task in hand, as well as the implications of being non-compliant.
Identify the personal data that you hold. You should also identify information falling within the Special Categories (Article 9) or data relating to criminal convictions and offences (Article 10). It is important to identify all personal data being processed including that relating to your own staff, customers, suppliers and other third parties.
Identify each of your specific purposes for processing personal data.
Develop and implement a training programme. This will be essential for many aspects of compliance, including implementing appropriate security (Article 32). Training should be commensurate to people’s data protection responsibilities and will be the topic of future blogs.
Making your Business Processes Compliant
You will need to review all processes that relate to personal data.
Wherever you process personal data, identify the legal basis for processing (Article 6). This will be the topic of our next blog.
Review your procedures to obtain consent where you are relying on it for the legal basis of processing as they may need to be changed to comply with the GDPR. This will be particularly important where you may be currently assuming consent (permitted by current legislation where it is reasonable to do so) (Article7).
Amend processes that will not have a legal basis for processing. One example is those in the public sector that currently rely on the legitimate interests condition.
If you process personal data relating to children, ensure your processes have the specific protection required by the GDPR. This has a number of references including Article 8 and Article 12.
Ensure your processes for managing business change include procedures for conducting data protection impact assessments and prior consultation (Section 3).
Develop procedures for reporting data breaches. The GDPR requires that organisations notify both the ICO and data subjects (Articles 33 and 34).
Develop procedures for demonstrating compliance (accountability) (Article 5). These should include assessment of the effectiveness of technical and organisational measures for ensuring the security of processing (Article 32).
The GDPR has specific references to profiling. You should check the compliance of any processing using profiling techniques such as marketing and automated decision making.
Where you transfer, share, or provide data to other organisations, make sure these are documented. You will need this information to comply some of the individual’s rights listed below.
Ensure the appropriate safeguards are in place for any international transfers.
Ensuring Your Systems are Compliant
System compliance, for many, is likely to be a significant piece of work.
All processing requires data protection by design and default (Article 25). This will apply to processes as well as systems although it is likely to have the largest impact on systems. This article also requires that the personal data being processed is strictly limited to that which is required for the purpose of processing.
Begin implementing system change for compliance. Most of us will need to start this now if we are going to be ready for 25 May 2018.
Even if you don’t operate internationally, check the geographic location of where your data is being processed. You may find it is outside of the EEA and you need to take action to be compliant.
Consider the requirements for pseudonymisation and encryption, other appropriate security requirements, and the ability to restore data (Article 32).
Check that your systems have all the necessary functionality to comply with each part of the GDPR, in particular retention and the right to be forgotten.
Producing the Relevant Documentation
Accountability and transparency are key requirements of the GDPR. You should take steps to:
Develop privacy notices that contain all the necessary information (Articles 13 and 14).
Develop your records of processing activities, if required (Article 30).
Review and revise contracts and agreements where required. This will be particularly important where the agreements relate to personal data. It will also be important to review information sharing agreements and data processing agreements.
Consider which records you are going to use to demonstrate compliance (accountability) (Article 5). You may need to create new audit and assessment procedures.
Managing the Rights of Individuals
The GDPR introduces new and amended rights for data subjects. The first task is to ensure you understand what each of the rights mean in practice. You then need to:
Review your procedures for processing subject access requests and make sure they comply with the new requirements (Article 15).
Develop procedures to implement the right of rectification (Article 16).
Develop procedures to implement the right to be forgotten. In certain circumstances, organisations will need to erase personal data on request. Where the organisation has made that data public, they must also take steps to prevent others from processing that data (Article 17).
Develop procedures to implement the right to restrict processing (Article 18).
Individuals will have a right to data portability meaning that they can request that their personal data is transferred to another organisation in a structured, commonly used format (Article 20).
Implement procedures that will manage an individual’s right to object to processing (Article 21).
Please contact us to discuss how Tkm can help with your preparations.
I’m not sure any information management blog would be complete without comment on the recent news. There have been two stories that caught my eye. The first, I am sure, almost goes without saying and relates to the malware attack and importance of cyber security. The second was less prominent although still relating to the on-line environment and looks at the right to be forgotten introduced by the General Data Protection Regulations (GDPR).
The Increasing Profile of Cyber Security
It is very unlikely that you have managed to escape the fact that there has been a ransomware attack on global scale affecting huge numbers of organisations. IT security is often an area where costs are cut without a full awareness of risks associated with poor security.
Without proper arrangements in place, organisations may be in a situation where they have quite literally lost all of their information, records and documents. For some this will almost certainly mean that they will have to stop operating or trading. Even if organisations can continue operating, what is the real cost of losing financial, customer and operational records? They are likely to be substantial and this is without considering risks to the organisation’s reputation.
Are You Managing Key Risks?
As with any loss of data, this may also be considered a data breach by the Information Commissioner, regardless of whether access has been compromised. Under data protection legislation organisations must take appropriate technical and security measures to keep personal data secure (Principle 7 under the Data Protection Act 1998).
There is already a huge amount of guidance and advice that has been issued from a number of reputable sources, one of which is the NCSC. Just to reiterate, there are basic steps everyone can take to improve their information security and protect themselves against on-line threats:
Keep all of your software up to date, particularly operating systems. Your network can be compromised in a number of ways, it is not limited to e-mail.
Ensure you have a comprehensive anti-malware software and other appropriate on-line protection.
Make sure you have a reliable back up of all your critical business information. This should be separate from your main systems. You should also test your back up regularly.
Train your staff and others using equipment on your systems or with access to your network. Basic training about the importance of information security is essential.
The Right to be Forgotten
The increasing cyber security risks wasn’t the only story to catch my eye recently. I read with interest that one of the political parties issued an election pledge to pass legislation that enables people to remove their records from social media. The records would need to relate to a time before they were 18 years old. While I am not going to get into legal technicalities in this blog, it would seem that they may not be aware of the General Data Protection Regulation (GDPR).
The GDPR provides a right to erasure, or the “right to be forgotten” (Article 17). It has been designed to tackle people’s lack of control of their own information in the on-line environment. It will, however, apply to all personal data and not just information published on-line. The GDPR has no restrictions on who can make a request and the right applies to everyone, not just those who are under 18.
You should check your systems will allow your organisation to comply with the right to be forgotten. With cloud-based computing and the ability to restore back ups, it may not be straightforward. The GDPR also introduces significantly enhanced protection for personal data that relates to children. Anyone processing the personal data of children should check the new legal requirements as a priority.
One pro-party article I read said that the party will introduce a new data protection act to tackle these issues. Good news! No need, the job is already done!
Tkm can help with your preparations for the GDPR. To discuss your requirements for data protection consultancy and training, please contact us.
With just over a year to go until the implementation of the General Data Protection Regulation (GDPR) one of the tasks to get started with for certain types of organisations is the appointment of a Data Protection Officer (DPO).
The Article 29 Data Protection Working Party (WP29) has recently published some useful guidance (5 April 2017) that describes the DPO as being at the “heart of this new legal framework”, and this blog summarises key elements of the guidance and associated annex.
Who is required to appoint a DPO?
There are 3 cases where it is mandatory for a DPO to be appointed by a Controller and a Processor (Article 37(1)):
Where the processing is carried out by an organisation considered to be a public authority or body except for courts acting in their judicial capacity. The WP29 guidance suggests that, as good practice, private organisations carrying out public tasks (such as energy supply, public housing and others) should also designate a DPO.
Where the core activities of the controller or the processor consist of processing operations, which require regular and systematic monitoring of data subjects on a large scale. The WP29 guidance defines “core activities”, “large scale”, as well as what constitutes “regular” and “systematic”, and discusses useful examples such as the use of closed circuit television.
Where the core activities of the controller or the processor consist of processing on a large scale of special categories (Article 9) of data or personal data relating to criminal convictions and offences. As above, the WP29 guidance has some useful examples of what processing is likely to fall within this definition.
Unless obvious, the WP29 guidance recommends organisations should conduct “internal analysis” to determine whether a DPO is to be appointed.
If a DPO is not mandatory for our organisation, should we still appoint one?
Organisations can voluntarily appoint a DPO. However, it should be noted that the WP29 guidance states that where a DPO is designated on a voluntary basis, the requirements laid down under Articles 37 to 39 will apply as if the designation had been mandatory. This means that if you do not have to appoint a DPO, roles should only be given the title of DPO if they will be tasked with all obligations laid down in the Articles above. They are also responsible for all processing operations carried out by the organisation with regard to personal data, meaning that you cannot be selective about which processes the DPO may cover.
What are the DPO’s responsibilities?
Tasks of the DPO are laid down by Article 39(1) and are summarised below. These are to:
Inform and advise the Controller or the Processor and the employees who are processing personal data of their obligations under the GDPR;
Monitor compliance with the GDPR;
Provide advice regarding data protection impact assessments and monitor their performance;
Cooperate with the supervisory authority, which is the Information Commissioner’s Office (ICO) in the UK;
Act as the contact point for the ICO on issues related to the processing of personal data.
Article 39(2) requires the DPO to have a risk-based approach to undertaking their duties, taking into consideration the nature, scope, context and purposes of processing operations. The accessibility of the DPO should also be effective, with the controller or processor required to publish the contact details of the DPO and also provide them to the ICO.
It is important to note that a DPO is not personally responsible for compliance with the GDPR. This remains the responsibility of the Controller or Processor (Article 24(1)). There are additional organisational responsibilities with regard to the DPO and these will be covered in a later blog.
Who can be a DPO?
Article 37(5) states that the DPO, who can be a staff member or contractor, “shall be designated on the basis of professional qualities and, in particular, expert knowledge of data protection law and practices and the ability to fulfil the tasks referred to in Article 39”. The WP29 guidance states that although required level of expertise is not defined, “it must be commensurate with the sensitivity, complexity and amount of data an organisation processes”.
It is worth noting that although Article 38(6) allows DPOs to “fulfil other tasks and duties”, an organisation must ensure there is no conflict of interest. The WP29 guidance suggests this will depend on each organisation although may preclude senior management such the Chief Executive, Chief Financial Officer, Head of Human Resources, and Head of IT amongst others from the role of DPO.
You can then begin the process of recruitment, contracting and training new and existing staff as appropriate. It is essential that your organisation has developed the necessary competencies to comply with the GDPR by 25 May 2018. Training is a key organisational measure in preparing for the GDPR and Tkm can help. If you are interested in training for DPOs please contact us.
Tkm is in the process of adding accredited data protection qualifications to their portfolio and also delivers in house training that can be fully customised according to your business sector and the individual learning needs of your staff.
Look out for our next blog which will provide some guidance on choosing the right training for your organisation, helping to ensure best value for money.
The material contained in this article constitutes general guidelines only and does not represent to be advice on any particular matter. No reader should act on the basis of material contained within this site without first taking professional advice appropriate to their particular circumstances.
I couldn’t help but smile over the Christmas break when the other half was playing with their latest gadget, a well-known Voice Service speaker. Having started to become familiar with how it operated, the requests were getting shorter and shorter. It would appear that manners are included for free – when the commands were eventually reduced to a single word, the speaker responded with “that wasn’t a very nice way to ask” and the request had to be rephrased before being actioned!
The technology in these devices is amazing although it once again highlights the increasing issues with privacy. Devices are constantly “listening” and monitoring the environment, collecting data about the way in which we are choosing to live our lives. And how many of us actually check what happens to this data or take any steps to control how it is used? We have already seen a case in the USA where the police have issued warrants for the data collected by such a device. While they were refused, the police were still able to extract the data they were looking for from the device itself, and I am sure a cases will follow in the UK.
The explosion of new technology highlights the need for reform of privacy-related laws, and the General Data Protection Regulation (GDPR) will offer much greater control than existing laws. With less than 18 months until it comes into effect, it is time to begin preparations. It is a fairly complex piece of legislation with potentially significant implications so where do we start?
This blog is going to go back to basics, discussing what information falls within the GDPR. This will inform and underpin many of topics discussed in later blogs as well as provide an opportunity for you to assess your readiness for the GDPR.
Relevant Key Terms
We are going to start by briefly discussing the key terms used in this blog and their interpretation. The first terms to be considered are “personal data” and “controller”.
The definition of personal data is broadening from the existing definition under the Data Protection Act 1998 (DPA 1998) (see Note 1). The GDPR applies to personal data which is defined as (Article 4):
“…any information relating to an identified or identifiable natural person”.
The definition goes on to state that an identifiable person is one who can be identified directly or indirectly by reference to an identifier, and includes online identifiers.
If you are responsible for personal data, you are likely to currently be considered a data controller. The term “controller” and its definition is essentially retained under GDPR, which states the controller:
“…determines the purposes and means of the processing of personal data”.
Alongside identifying any responsibilities for personal data, it is also important to identify what personal data your organisation is processing, as they may not necessarily be the same. The term “processing” essentially covers anything you do with information, including collection and storage (see Note 2).
Where an organisation is processing personal data on behalf of a data controller, they are likely to currently be considered a data processor. The term and meaning of “processor” is retained by the GDPR although there are new responsibilities for data processors which will be discussed in future blogs (see Note 3).
Documenting Your Organisation’s Personal Data
Before we can start on compliance activities, the crucial first step is to identify the personal data for which your organisation is responsible, as well as personal data being processed by your organisation. This may seem obvious and straightforward, and often can be, although it is always worthwhile spending some time auditing activities to determine exactly where personal data is held, and why and how it is processed.
There are many different ways of auditing the information held by your organisation. The audit needs to establish the properties of personal data, which will help determine levels of compliance and what changes need to be made. It is recommended that the interpretation of personal data is as wide as possible at this stage to ensure nothing is missed. If information allows or enables people to be identified, including information that requires a secondary source to make that identification, it should be documented as personal data.
Under GDPR there is much more of a focus on accountability, which places a greater emphasis on knowing where your personal data came from, and where it goes. Therefore rather than looking at static datasets and collections of information, it may be more effective to base the audit on business processes and looking at inputs and outputs. In addition to identifying the information associated with that process, this approach will also enable you to understand how data flows through your organisation.
It will be important to document as much as you can about how personal data is managed. For each business process, this should include:
Personal data held by your organisation. If not already known, it would also be helpful to note whether your organisation is likely to be considered the data controller, and the format in which it is held;
Personal data held and processed on your behalf by a third party. GDPR is likely to require changes to existing contracts and this will be revisited in a later blog;
Personal data being processed by your organisation on behalf of a third party;
The purposes for which personal data is processed. Remember that different parts of your organisation may be using the same information for different purposes and each purpose should be documented;
How personal data is processed and any resulting changes to that dataset or information. It will also be important to identify whether there is any automated processing and who can access the data;
How long personal data is kept and how it is destroyed;
Sources of personal data, and whether personal data from your organisation is made available or accessible to a third party;
It would also be helpful to document existing safeguards in place such as contracts, data processing agreements, or data sharing agreements, and which role in your organisation has overall responsibility for the personal data you identify.
There are many ways to approach the audit or review and the most appropriate method for your organisation is likely to depend upon many factors including size and type of business activity (see Note 4). You may wish to create an information asset register (IAR), which can be developed and updated as the various measures for compliance are implemented. This type of document should provide you with current high level risks of non-compliance to your organisation, as well as provide a record of the measures taken to ensure compliance.
Remember, GDPR builds on existing data protection legislation and organisations should already be compliant with the DPA 1998. Once you have documented your personal data, it would be useful to do a check on current compliance, and identify whether any immediate actions are required.
We are going to use this information in a number of future blogs to assess your readiness for the GDPR so make sure you keep it handy. Questions, comments, feedback and special requests are always welcome.
Note 1: The current definition of personal data and guidance on its interpretation is available from the Information Commissioner’s (ICO) website. The ICO is the UK regulator for the Data Protection Act 1998 and will also regulate the GDPR.
Note 2: ‘Processing’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;
Note 3: Data controllers are currently responsible for ensuring any processing of personal data for which they are responsible complies with data protection legislation. GDPR introduces distinct requirements for data processors which will be covered in a later blog, and it is important to understand your role with regard to personal data that your organisation is processing from the outset.
It is possible for an organisation to be a data controller and a data processor. For example, if you are an organisation providing employment services for others such as HR services to other organisations, you are likely to be a data controller for your own client (where they are individuals, sole traders or partnerships) and employee information. You are also likely to be a data processor of personal data relating to third party employees.
In practice, these relationships can often be extremely complex. The relationship should be documented by contract and further guidance on this is available from the ICO’s website.
Note 4: The first place for guidance is always the ICO’s website. There are also the relevant BSI standards which relate to managing records and information. For a more detailed approach using business process, there is some useful guidance in DIRKS https://www.records.nsw.gov.au/recordkeeping/advice/dirks/step-b. This was written primarily for Australian public sector organisations, however, the principles can be applied to any organisation and it is widely accepted as best practice. If you are interested in Tkm to providing this service for your organisation and assessing your readiness for the GDPR, please get in touch.
The material contained in this article constitutes general guidelines only and does not represent to be advice on any particular matter. No reader should act on the basis of material contained within this site without first taking professional advice appropriate to their particular circumstances.
As many of us will already know, if we use personal information we are likely to be subject to data protectionlaws that govern the way in which we are able to use that information. Whether we have a simple contacts and appointments book as a self-employed or freelance worker, post pictures on social media promoting our business or charity, or have many thousands of individual client records within a large business, we are likely to be required to comply with the Data Protection Act 1998.
While some organisations have excellent standards of compliance, I think it would be fairly safe to say that many remain unaware of their obligations under the legislation and, perhaps for some, even that the law exists or that it applies to them. Arguably that has been due, at least in part, to the minimal risks facing most from non-compliance. The Information Commissioner’s Office (ICO) can and does issue fairly significant fines, and we have recently seen Talk Talk given a record £400k fine for failing to appropriately secure personal information. However, for many, the circumstances that give rise to these headline-grabbing penalties are likely to seem a world away from their own operations.
What is Changing?
Every organisation that uses personal information should be aware that the most significant change to data protection law in decades is on the horizon. After a time of uncertainty, the way forward for the implementation of the General Data Protection Regulation (GDPR) seems to be emerging. The new EU Regulation on data protection was adopted earlier this year, becoming effective in all EU member states in May 2018.
Being an EU Regulation, naturally there was some confusion (and, perhaps for some, wishful thinking!) about whether it would actually come into force following the Brexit vote. However, we now have confirmation that the ICO considers the Regulation as being in force (just not in effect), as well as the widely reported proposal from the UK Government that all existing EU legislation will be transposed into domestic legislation by the Great Repeal Bill.
The UK Government may chose to amend some aspects of certain EU Regulations although in the case of GDPR, most are unlikely to be in a position where they can afford to wait and see what happens. With fines in the new legislation of up to an eye-watering 4% of annual global turnover or €20M, there can now be little doubt that it is definitely time to get started with changes required to implement the new standards. We also need to remember that the Regulation (in its current form) is highly likely to come fully into force before we leave the EU.
What Does My Organisation Need To Do?
This blog will help you prepare for the new data protection legislation and manage key risks to your organisations.
We will be issuing a regular blog that looks at the practicalities of implementing new requirements, draws together any relevant advice and guidance that has been issued, and keeps you informed on the meaning of any legislative change that could effect implementation. Topics that will be covered will specifically discuss some of the new GDPR requirements and will include:
Implementing a breach reporting procedure that informs the ICO and people where their data has been put at risk;
The practical implications of the “right to be forgotten”. Individuals can request, at any time, that information you hold about them is deleted and you must be able to comply with this request unless there are legitimate grounds to continue holding it, for example, for tax purposes. By implication, you will need to know what information you are holding, how long you need to hold it for, when you are able to destroy it, and provide confirmation it has been destroyed, which is arguably already a requirement under existing legislation;
The meaning of “data protection by design and default”. Adequate controls to safeguard personal information must be integrated into systems and procedures from the planning stages, and in some cases will require a privacy impact assessment;
Understanding the legal basis for processing personal information, which means you are able to justify, in terms of the legislation, why you are processing personal information. While this may sound like legal jargon, it is going to be an area that organisations will need to familiarise themselves with in order to comply and we will try to break this down into simple tasks. People will have a right to this information, and it will also need to be included in privacy notices;
Following on from above, consent is one of the conditions for processing that you may be currently using the rules for the use of consent are changing. Again this is likely to be a major task for some organisations. Our blog will look at what procedures may require change and ways of integrating the obtaining of consent into existing processes that comply with the new legislation;
Some organisations will require a data protection officer and we will look at their role and how that should facilitate compliance.
Key Action Points
There is some information available from the ICO’s data protection reform site and all organisations should start by reviewing the 12 steps for preparing for GDPR. At the very least, organisations should be looking at their compliance with the current legislation and taking action to address gaps. Building on the ICO’s guidance, two key tasks to get started on are to:
Identify what personal data you hold, where it was obtained from and who it is shared with. As discussed above, you should also understand why you are
holding it (the purpose), how long you need to retain it for, and ensure it can be destroyed when it is no longer required;
Raise awareness of the new legislation within your organisation. Change is likely to require resources and senior management buy-in which will be supported by key people in your organisation fully understanding the risks.
As always, feedback and requests for topics are always welcome.
Liz has worked with data protection for nearly 20 years and helps organisation with managing their information as well as practical compliance with information-related legislation.
The material contained in this site and in this blog constitutes general guidelines only and does not represent to be advice on any particular matter. No reader should act on the basis of material contained in this site without first taking professional advice appropriate to their particular circumstances.
There was an interesting story that was reported in the press on 31 December 2015 about a restaurant who posted an image from their CCTV on Facebook of a group of 4 people that had allegedly left the restaurant without paying their bill. I am sure there will have been a significant number of people who read the reports and thought this was a highly effective way of addressing this particular issue.
Much of the discussion that followed centred on whether or not this was an appropriate course of action for the restaurant to take from a customer service perspective. The comments that were reported suggested the majority of people felt it was a social media blunder although there was also some support for the action taken by the restaurant.
However, leaving that particular argument to one side, what did not seem to be mentioned in any of the reports was the fact that posting CCTV images of people on-line is likely to be unlawful in the vast majority of situations including both of those mentioned above. The consequences and potential penalties of unlawful processing could be far greater than the cost of a meal for 4 that was quoted in the press. In fact, there have already been investigations into exactly this type of information disclosure where an organisation streamed CCTV footage to the YouTube website and was required to enter into an Undertaking with the regulatory body, the Information Commissioner’s Office (ICO), to address breaches of the Data Protection Act 1998 (the Act).
CCTV images will usually be considered personal data, and in this particular case will definitely fall within data protection legislation as the people were clearly identifiable. Assuming the restaurant is using CCTV lawfully in the first instance (they have notified the ICO and have the relevant and appropriate data processing notices), it is still difficult to imagine any circumstances in which most businesses can lawfully publish CCTV images.
All personal data, including images, must be obtained for a legitimate business purpose, which must be a legitimate business activity of the organisation collecting the data. Once obtained, the data can only be used for that purpose and should also be processed in a way in that ensures compliance will all 8 Principles of the Act.
Most businesses will report the use of CCTV as being used legitimately for crime prevention and detection although the need for CCTV should be demonstrated through the necessary risk assessments and privacy impact assessments.
When it comes to investigating crime rather than preventing or detecting crime, there are very few organisations that will be able to report this as a legitimate business activity, with the obvious exception being law enforcement agencies. Therefore any processing by organisations for the purposes of investigating or solving “crime” that are not law enforcement agencies is likely to be unlawful. I have used “” for the word crime as I am not sure from a legal perspective whether there is technically any evidence to suggest a crime had actually been committed by one or more of the party of 4 in this case. Media coverage suggests the incident had not been reported to the police at that time the image was published.
Furthermore, the ICO makes it quite clear in their CCTV Code of Practice that the identification of individuals from CCTV should only be carried out by law enforcement agencies and goes on to state:
“…it can be appropriate to disclose surveillance information to a law enforcement agency when the purpose of the system is to prevent and detect crime, but it would not be appropriate to place them on the internet …”
Therefore, in answer to the question in the title, my view is that it is quite clear CCTV images should not be published anywhere, including on the internet, and it may even be unlawful.
From the information reported in the media, there is potentially a whole catalogue of breaches of the law. The case also calls into question whether the necessary risk and impact assessments had been carried out. The penalties could be significant if any follow-up action is taken by the ICO. Furthermore, action could be taken by any of people identified in the CCTV who may have grounds to make a legitimate complaint due to the unlawful disclosure of their personal data and, in some circumstances, seek compensation for damages. It should be noted the restaurant subsequently removed the post.
If you have CCTV you need to ensure its use is justified and the data being collected is being processed in accordance with the relevant legislation. Comprehensive guidance is available from the ICO and, as always, please contact me to discuss training requirements or for help with impact or risk assessments.
I was recently attending a training session and a discussion started late in the afternoon about e-mail marketing and making the most of customer lists. There wasn’t much of the day left and after a brief chat, we made a joint decision it would be an ideal first topic for my blog. So a big thank you to everyone for the inspiration to get started!
Connecting with customers is hugely important for all kinds of organisations. Most of us receive lots of e-mails every day for a wide range of purposes including marketing as e-mail is quick, easy to use and can be a highly effective promotional tool.
Using e-mail for direct marketing activities is governed in the UK by the Privacy and Electronic Communications Regulations (the Regulations), regulated by the Information Commissioner (ICO). He is able to impose fines of up to £500,000 for breaching the rules, meaning that getting it wrong can be costly both in monetary terms and irritating your customers.
This blog has some hints and tips on staying compliant although exact practical requirements for your organisation will depend on your circumstances. Therefore it is essential that you read the ICO’s guidance and contact me for further help if required.
In terms of the legislation, marketing is not just the promotion of goods and services by commercial organisations. It also encompasses the communication of aims and ideals, and covers charities and not-for-profit organisations.
Most organisations are likely to undertake solicited and unsolicited marketing. Solicited marketing is where a customer has specifically requested information such as completing an on-line form to request further details about a particular product. The Regulations generally don’t apply here although remember there will almost certainly be other data protection obligations that are relevant.
Unsolicited marketing is where you send marketing material to people, who are perhaps on a client list or in a customer database, when they haven’t specifically asked for it. This will be covered by the Regulations and requires those that you are targeting to have given their permission to use their contact details (in this case their e-mail address) for marketing purposes.
The way in which you obtain consent is likely to depend upon how you are interacting with a customer. Best practice is to have what is called an “opt in” box, where customers have to take positive action (in this case, tick the box) to indicate they are consenting to receiving information. An example of text that could be used alongside an tick box would be:
“Tick this box if you would like to receive information about our goods and services by e-mail.”
The Regulations do not require explicit consent and therefore you can use “implied consent”, meaning it is reasonable from the context to assume people want to receive information. However, bear in mind that there are new EU regulations on the horizon and implied consent is unlikely to be compliant if they come into force in their current form. Note that implied consent is not considered to be the same as opting out, discussed below.
The next option is the “soft opt-in”. This is for existing customers in the following circumstances:
Contact details have been obtained during the course of a sale;
You are only marketing your own similar products or services; and
People are given an opportunity to opt out of marketing both when details where first collected and in every message after that.
Again, it is questionable whether the soft opt in will comply with the proposed regulations once they come into force, therefore you may wish to consider changing your procedures to opt in if you are currently relying on the soft opt in.
The final option is an “opt out” box. An example of text alongside an opt out box would be:
“Tick this box if you do not wish to receive information about our products and services.”
It is generally recommended that this option is only used as part of a soft opt in. Relying solely on an opt out is unlikely to meet your legal obligations as not ticking a box does not necessarily indicate a person is consenting to receiving marketing information.
There are other requirements when using e-mails for marketing purposes. In every communication you must always tell people who you are, provide contact details, and a mechanism for people to unsubscribe from your marketing communications.
Also don’t forget about your other types of marketing, for example, by post, telephone (recorded or live), and fax, all of which are covered to some extent by the Regulations and may require consent.
Note that the Regulations only apply when sending marketing communication to personal e-mails although this includes sole traders and partnerships. To stay compliant, you may wish to consider having one policy for all e-mail marketing that follows best practice for personal e-mails. This will be particularly important for business to business marketing where organisational structure may be unclear from an e-mail address.
Further Information As always, you can contact me if you require further consultancy and advice on the practical implementation of data protection requirements.
There may be additional factors that you need to consider in your particular circumstances and a PDF guide is available from the ICO together with a checklist summary.