Europe under Review: Part 8 of 8 – Individual Rights

by Dentons
Contact

This week we look at the last topic in our series of “back to data privacy basics”: individual rights.

Rights of individuals at the heart of data protection

As we have seen over this series, the protection of the privacy of individuals is placed at the heart of current data protection law.  Organisations are permitted to process individuals’ data only under certain conditions, and in most circumstances individuals enjoy the right to information about what processing is taking place, and varying degrees of control over that processing.

These core principles of information and control pervade the current legislation in various ways:  the fair processing requirements; data controller notification; and many of the gateway conditions which legitimise processing.

The rights which individuals enjoy under the current law has been brought into sharper relief as a result of the recent Google Court of Justice of the EU decision around a “right to be forgotten”.  See our alert [ http://www.dentons.com/en/insights/alerts/2014/may/29/google-court-decision-the-right-to-be-forgotten ] for more on this.

Specific protections

However, even with the benefit of judicial intervention, specific individuals’ rights are very clearly enshrined in Part II of the Data Protection Act 1998 (DPA): The rights of data subjects and others.  These specific protections cover the following:

  • Subject access: the right for a person to access a copy of his/her personal data;
  • Stop processing:  the right to prevent processing likely to cause damage or distress;
  • Direct marketing: the right to prevent processing for the purposes of direct marketing;
  • Automated decisions: the right to prevent certain “significant” decisions being taken about them by purely automated decision-taking processes;
  • Compensation: the right to claim compensation for certain breaches of data protection law which cause damage or damage and distress.
  • Rectification, blocking, erasure and destruction: where data is inaccurate.

Rights in practice

In practice, the exercise by individuals of these rights has been quite varied, but one theme they all have in common, is that their exercise has been surprisingly infrequent given their potential scope and power.

The most frequently used exercised right is that of subject access.  This right can be very important for individuals to understand what processing has taken place about them, and if necessary, exercise further rights.  It is important that organisations have systems and processes in place to enable them to spot when a subject access request is made and deal with it in a compliant manner.

Perhaps, however, one of the most surprising features of the current regime has been the relative lack of claims for compensation for breach of the DPA.  And in the limited number of cases where there have been claims, the compensation awarded by the courts has been relatively low.  Part of the reason for this low take up is undoubtedly due to lack of knowledge among individuals that compensation is available.  But an equally important factor may be the relative lack of ease of access to the Courts for exercise of this remedy.

The regulations

The regulations build upon the existing rights of data subjects and look to introduce several new ones.  The most eye catching of these are:

  • the right of “data portability”: this is the right for individuals to receive copies of their personal data in a common format such that the individual can use      or pass on that information to a third party;
  • the right to “be forgotten”: a more extensive requirement for personal data to be deleted where requested by an individual; and
  • a right to object to “profiling”: for example where personal data is used for analytics.

All 3 of these rights have been hotly debated by different players in the information ecosystem, especially those significantly involved in big data.  However, the current European Parliament draft of 12 March 2014 [see: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2014-0212&language=EN&ring=A7-2013-0402] contains reference to all of them in varying degrees, and it looks likely that the final regulations will provide for at least the majority of them.

Practical advice for now and the future

Organisations need to make sure they can spot when individuals are exercising their rights and give effect to them in a compliant manner.  One of the surest ways to invite an ICO investigation is for an organisation to repeatedly ignore legitimate attempts by data subjects to exercise their rights.  This, on most occasions, tends to be as a result of simple failure on the part of organisations to spot a valid request, rather than deliberately ignoring them.

Against this background, one of the most important things an organisation can do is to ensure its staff are adequately trained to be able to spot when a request is being made, and to know what to do with it.   This training should be supported by appropriate systems and processes, and written policies where appropriate.

Organisations should therefore make sure that they get this right now, ahead of implementation of the Regulations which will only build upon the current regime.

As to the future, whilst the exact final shape of the Regulations remains to be seen, it is clear that some important new rights will be introduced.  Organisations should factor in the possibility of rights such as the right to be forgotten and data portability into any systems which are currently being designed or implemented in order to avoid the threat of considerable additional expense in the future.

This posting marks the end of our “Back to Privacy Basics” series.  We hope you enjoyed it! 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dentons | Attorney Advertising

Written by:

Dentons
Contact
more
less

Dentons on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.