UK publishes Data Protection Bill

by Dentons
Contact

Dentons

On Thursday 14 September 2017, the UK published its new Data Protection Bill. It comes with much fanfare that it will underpin a world class privacy regime for the UK, give individuals more control over their data, support business and prepare the UK for Brexit.

It is also a monster of a document with 194 sections and 18 Schedules. There are also 109 pages of explanatory notes.

Outline of the Bill

As everyone knows GDPR will apply directly to the UK as a member state of the EU on 25 May 2018. The Bill will add the following key components:

  • Clarifications and derogations from GDPR (as permitted by GDPR) – see sections 5 to 18 and Schedules 2 to 4.
  • A regime broadly equivalent to GDPR for types of processing to which GDPR does not apply (areas outside the scope of EU law and foreign/security policy) – see section 19.
  • An equivalent privacy regime for Law Enforcement (to implement the Law Enforcement Directive – see sections 27 to 79).
  • Additional privacy rules for Intelligence Services – see section 80 to 111.
  • Rules applicable to the ICO and enforcement – see sections 112 to 168 (Parts 5 and 6). 

So this is a comprehensive approach and aims to ensure that the UK can seek an "adequacy decision" (or equivalent) post-Brexit.

Other key observations

Here are our initial observations on the Bill:

  • The threshold for children's consent in relation to online services is confirmed to be "13 years" (the UK has derogated from the GDPR threshold of "16 years"). So has Ireland.
  • There are a range of limited exemptions (primarily in Schedules 2 to 4) from various "listed GDPR provisions" including obligations to provide privacy notices and offer individual rights. The exemptions include processing for the prevention and detection of crime, protection of rights of third parties, legal professional privilege, self incrimination, management forecasts, negotiations and confidential references. Some of these exemptions are very similar to those in the current UK Data Protection Act.
  • It is confirmed that individuals can claim compensation for non-pecuniary loss (e.g. distress). This reflects the GDPR position and will likely drive claims risk.
  • There are new criminal offences of:
    • re-identification of de-identified personal data;
    • alteration of personal data to prevent disclosure (where an individual serves an Access Request); and
    • retaining data against the wishes of the controller and then using it for an unlawful secondary purpose.
  • Directors and managers may be personally liable where a corporate entity commits an offence with that individual's consent or neglect. This is similar to the current DPA position in the UK.
  • Registration: The requirement for registration has been removed. However, the Bill does allow the Secretary of State to make regulations requiring data controllers to: (1) pay a charge to the Commissioner; and (2) provide information to the Commissioner to help the Commissioner identify the correct charge to be levied. This wording reproduces the substance of the charging powers already incorporated into UK law by the Digital Economy Act. The position is not yet clear, but these powers seem to indicate there will be a form of registration within the UK. 

With the imminent deadline of 25 May 2018, it is now time to take a detailed look at the Bill in the context of GDPR.  Lots to read!

 

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.