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With conflicting advice still available on the ICO website there seems to be a lot of confusion around exactly what a data subject is entitled to when they exercise their right of access under GDPR.

Many data subjects still seem to think that this right entitles them to receive a full copy of their file free of charge, when actually that will not be the case 99.9% of the time.

The Right to Be Informed

Individuals have the right to be informed about the collection and use of their personal data, including-

• The purpose for processing the data and how you will process the data

• The retention periods you will apply

• Who you will share the data with.

You provide this information in your privacy notice which should be given at the point of collection and you will provide a link to the information on your website.

The Right of Access

Individuals have the right to access their data, and can make a ‘subject access request’ verbally, in writing or even via social media (don’t forget to check your tweets!).

You now have one calendar month instead of 40 days to respond to the request and you can no longer charge a fee.

The data subject is entitled to –

• Confirmation that you are processing their data

• A copy of their ‘personal data’ (we will come back to this in a minute!)

• Other ‘supplementary’ information which is basically the information you provide in your privacy notice.

But what exactly does ‘a copy of the data’ mean?  You will be pleased to know that by and large this does not mean that they are entitled to a copy of the entire file of papers.  A ‘copy of the data’ is basically that, a list of the data fields that you process, which can identify the data subject (name, address, date of birth etc.).

Where it becomes slightly complicated is if it is possible to identify the data subject from the information you are processing then that information may also be personal data.  In a recent ICO live chat I was given the example of where you hold on file an email from an individual complaining about the data subject.  Whilst I did engage in a long debate with the representative about whether this would be appropriate for a law firm to disclose, or potentially for an employer to disclose where an investigation was being carried out for example, the conclusion from the ICO was that I would need to consider this type of document carefully and make a decision about whether there was a valid reason to withhold the document or not.

In situations where you are simply instructing a third party, for example a letter to an expert which sets out the name, address and contact details of the data subject, but is then just a business to business email giving instructions on work to be carried out, then a copy of this letter would not need to be provided.

General Points

• Review the types of communications you will have on your files – if any of them ‘could’ fall within the definition of personal data then make sure your staff are aware to consider these and flag them to the DPO for confirmation of whether they need to be included in the response of not.

• Data subjects can only be given a copy of their own data – an individual cannot request information on behalf of a partner for example.

• If a data subject requests something specific, for example a copy of a specific email by date or a copy of a specific call recording then you should look to provide this.

• You should ensure your staff are trained to recognise a request (remember social media!).

• You should have a documented process and should keep a log of all requests.

• The ICO’s Subject Access Request Code of Practice has not been updated for GDPR yet.

Get in touch

99% of the requests you receive will be straight forward but for that 1% which you maybe aren’t so sure about, remember you can use our ‘Ask Teal’ service, or simply contact one of our experts today.

GDPR 25th May….  It’s the date we have all been working towards, some of us for many months. But what happens on 26th May, and the day after that?

Well, initially we all have a well-deserved rest over a bank holiday weekend, and then it’s business as usual from Tuesday 29th May.  But what is ‘business as usual’?

For those who have not been able to complete their GDPR preparations prior to 25th May, you should have an action plan to take you through the following weeks and month on the journey to compliance with the principles of the GDPR and to demonstrate ongoing accountability.

But if you have completed your preparations it doesn’t mean that you don’t have any ongoing work to do.  In order to demonstrate accountability, you will need to test your processes, test your staff and create an audit programme.

1.  Test your processes

You have created a lovely shiny process to be followed if a data subject exercises one of their rights; but does it work? You may not receive a request straight away so why not run a workshop on the basis that you have received a request and work out the steps you need to follow to comply with the 30 day timescale – use the outcome to refine your process where necessary.

2.  Test your staff

You have trained your staff but how much have they actually understood? Are your policies and procedures embedded? Test them. Send in a ‘dummy request’ and see what happens. Don’t forget to also test from a cyber security point of view – simulated phishing email tests are a useful exercise.

3.  Create an audit programme

How will you demonstrate ongoing compliance? DPOs should consider regular spot checks, especially if your business has more than one site – are the team keeping paper that you think has been destroyed? Are visitor processes being followed – turn up unannounced and you will find out!  Don’t forget that root cause analysis of complaints and data breaches will provide you with valuable insight on how well your GDPR programme has been embedded. Check your websites on a regular basis to make sure they haven’t reverted back to old versions of any of your policies. Monitor social media for mentions of your business, which can be an early indicator of a data breach.

4.  Keep up to date

The draft Data Protection Bill had a provisional report stage on 9th May and as progress continues to be slow, it may not be enacted before 25th May. The E-Privacy Directive is also still stalled and could arrive at any time in the coming months so it’s definitely one to watch, and it’s always worth checking in with the ICO’s website to see updates on how they intend to enforce GDPR and what they will be looking at in the coming months.

Get in touch

Here at Teal we will of course keep you up to date through our blogs and our experts are always available to offer advice or even to come in and test your processes for you.  Find out more about our data protection services or simply get in touch with one of our experts.

With just 14 days left to go until GDPR implementation day, what should you be focusing on?

At our conference on 26th April, 57% of those attending said they had nearly completed all of the changes they needed to make in advance of 25th May, 4% stated that they were ready. So, what about the 22% who said they had only just started, or the 17% who didn’t know what GDPR was??  The key is DO NOT panic. It’s not Y2K all over again, the world will not end if you haven’t completed all of your preparations by 25th May.

What you do need is a plan……

Transparency is the key – prioritise those documents which tell your clients/customers what you will do with their personal data – how do you collect it, how do you process it, who do you share it with, how long do you keep it and how do you delete it?

Policies – get your key documents in order – data protection policy, data retention policy, privacy notices, cookies policy etc – make sure they are fully updated and available on your website.

Data processors – make sure you have full contractual arrangements in place with anyone who processes personal data on your behalf.

Data subject rights – how can your customers/clients exercise their rights under GDPR?  Make sure this is clearly signposted in your privacy notices, data protection policy and on your website – something simple, quick and easy. Make sure your staff know who to refer any requests to.

Don’t forget your employees! They will need a privacy notice that covers the use of their data for employment purposes and they will need to know where to refer any GDPR questions they either have themselves or receive from clients/customers.

Security – do you have robust security measures in place for both your electronic data and any paper data you store in filing cabinets?

Beyond this, and perhaps beyond 25th May, you will need to refine your processes for responding to data subject requests, ensure you have a full training programme in place (if you haven’t done training already) and consider what spot checks and audits you need to have in place to ensure ongoing compliance and accountability.

Get in touch

Don’t forget, here at Teal we are available to offer support for all your data protection needs. Simply contact us today for more information.

I recently presented at a GDPR and Cybercrime training session for a wonderful group of Fee Earners, who are members of a Barristers Chambers. During training I was asked some very interesting questions and as a group these issues were openly discussed. I was so impressed with the healthy discussions, I thought I would share some of the scenarios and the suggested solutions.

Scenario one

Article 5(1)(f) of the GDPR requires that personal data shall be:

“processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures”

Very often barristers will take a bundle to Court containing evidence, case management paperwork (e.g. application forms and directions), statements, expert reports and documents relating to a case. Unless the court has specifically directed otherwise, a bundle will normally be contained in one A4 size ring binder or lever arch file limited to no more than 350 sheets of A4 paper.

The file is usually transported by hand by Counsel to the hearing. Quite often Counsel will travel by train and the file is usually kept in a bag and needs to be placed in the luggage compartment quite a way from the reserved seat they have been allocated, especially on a busy train. How can Counsel protect that bag and the contents in this situation?

There are various options you may want to consider:

• If there is no option but to take a court bundle in a paper file (which will inevitably contain personal data), book a seat with extra leg room, these seats are allocated directly next to the luggage compartments. That way the bag is your view all the time.

• Ensure the bag is lockable – should the worst happen, and it is stolen, you are protecting the contents as far as you can.

• Consider taking an electronic copy of the bundle, perhaps on an encrypted USB stick which is password protected for access.

Scenario two

Article 5(1)(a) of the GDPR requires that personal data shall be:

“processed lawfully, fairly and in a transparent manner in relation to individuals”

Privacy notices describe all the privacy information that you make available or provide to individuals when you collect information about them. They help with building confidence with individuals in what you are doing with their personal information. Privacy notices should include:

• who you are;

• what you are going to do with their information; and

• who it will be shared with.

Very often a barrister will have their own ICO number, however, they rarely have a website on which to publish a privacy policy. In practice if they do receive a Subject Access Request from an individual exercising their rights, this will normally be coordinated through Chambers.

The question was asked whether the privacy notice of the chambers could be updated to publish all individual barrister ICO numbers, provide individuals with details of the processing and how to request a SAR and how the Chambers will deal with it?

I have to say this is a very practical approach given most Barristers use Chambers for their administrative duties. Provided you have covered the points listed above and detailed any data sharing activity you may conduct, practically this may be useful way of managing data privacy and ensuring obligatory time limits are met.

Scenario three

The accountability principle in Article 5(2) requires you to demonstrate that you comply with the principles and states explicitly that this is your responsibility.

One of the ways you can demonstrate compliance is to record your assessment of risks in relation to data security and your processes to mitigate that risk. This may include internal data protection policies such as staff training, internal audits of processing activities, and reviews of internal HR policies.

Often Barristers are asked to take on students for work experience for college or sixth form students looking to work in the legal field. The question posed was whether the same obligations imposed on employees are applicable to someone who is onsite for work experience?

Whether the individual is a work experience student, a casual member of staff, an employed Clerk or a Barrister, there should be no distinction. The obligation to ensure they have understood the importance of keeping data subject information safe/confidential and what to do if a data breach has occurred applies to everyone.

Ensure you have carried out adequate due diligence on the work experience student, and consider a confidentiality agreement. Allocate enough time during induction for the student to digest and understand your data privacy policies and procedures and most of all don’t forget to mention in the privacy notice that data is shared with work experience students.

Get in touch

See how Teal can help with your data protection needs. Alternatively, contact our experts today for advice.

 

With less than 50 working days until GDPR takes effect on 25th May 2018, many businesses are starting to consider the ‘hot topic’ of whether their marketing lists will still be valid.  But it’s not just GDPR that needs to be considered……

Current Rules (up until 25th May 2018)

Data Protection Act 1998 (DPA98)

Privacy and Electronic Communications Regulations 2003 (PECR)

After 25th May 2018

General Data Protection Regulation (GDPR)

Privacy and Electronic Communications Regulations 2003 (PECR) BUT only until the Regulation on E-Privacy and Electronic Communications (the E-Privacy Regulation) comes into force

General Principles

Under DPA98 “An individual is entitled at any time by notice in writing ……to require the data controller…to cease, or not to begin processing for the purposes of direct marketing….”

Whilst referenced in DPA98, the majority of the rules around direct marketing can actually be found in PECR.  Take a look at the ICO’s current direct marketing guidance, based on PECR.

Direct marketing can currently be carried out following a variety of opt-ins or opt-outs but under GDPR the rules become more challenging because giving consent (or opting in) to direct marketing has specific requirements.

GDPR says:

“Where personal data are processed for direct marketing purposes, the data subject shall have the right to object at any time….”

“Where the data subject objects to processing for direct marketing purposes, the personal data shall no longer be processed for such purposes.”

As we all know, under GDPR, organisations can only process personal data if they have a lawful basis for doing so (GDPR Article 5 clause 1).  The test for ‘lawfulness of processing’ includes that the data subject has given consent for the processing, but this does not automatically mean that you need consent to carry out direct marketing (or any other type of processing).

Legitimate Interests

Recital 47 of the GDPR states “The processing of personal data for direct marketing purposes may be regarded as carried out for a legitimate interest.”

Even the ICO acknowledge that obtaining valid consent under GDPR (Art 7) will be challenging and they urge businesses to consider whether consent is the correct lawful basis for the processing of any data.

But when deciding whether the sending of direct marketing can be done as a legitimate interest, an organisation still needs to consider the rules under PECR.

Postal marketing – not covered by PECR so as long as the organisation identifies itself, offers an opt-out and screens addresses against the mail preference service then it’s ok to send first party marketing (about your own products and services) as long as the client has not previously opted out.  If they haven’t previously opted out but have registered with the mail preference service then you need to leave them alone.

Email/SMS marketing – you must follow the rules in PECR which require an opt-in unless you have obtained the contact details of the individual during the course of a sale (or negotiations of the sale) of a product or service.  The marketing must be of a similar product or service and the individual must have been given the opportunity to opt-out.

Telephone Marketing – for live marketing calls, the rules say you can contact anyone as long as they have not previously opted out and are not registered with the telephone preference service.  You must not make automated calls to anyone unless they have specifically opted in to receive this type of call from you.

So what do you need to do?

• Consider whether consent is the most appropriate lawful basis for processing – can you use legitimate interests instead?

• Make sure your privacy notice covers direct marketing if you will be sending it to clients

• Ensure that there is an easy way for clients to opt-out of marketing and that your system can record the opt-out

• Ensure your marketing teams screen all marketing data against both the telephone preference service and mail preference service

• If you do need (or want to rely on consent) then review your current opt-in’s, if they don’t meet the requirements of Article 7 then you will need to ask your clients to opt-in again

• Keep an eye out for our updates on the E-Privacy Regulation – it was supposed to be ready for 25th May 2018 but this is looking increasingly unlikely as the text is yet to be finalised

Get in touch

We will be talking about the practicalities of GDPR at our upcoming conference in London on 26th April.  However, if you’d like to discuss data protection and GDPR with one of our experts, simply contact us today.