UK ICO Offers Guidance on Privacy Notices Under the GDPR and the UK Data Protection Act

by Ballard Spahr LLP
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In an anticipated guidance, the United Kingdom's Information Commissioner's Office (ICO) updated its code of practice for privacy notices titled Privacy notices, transparency and control (the Code). Significantly, the ICO has stated that compliance with the "good practice" recommendations in the Code will not only assist companies in complying with U.K. privacy laws, but also will satisfy relevant obligations of the General Data Protection Regulation (GDPR), the general European data protection legislation, which will take effect in May 2018.

Inquire and test before launching: The ICO emphasizes that disclosure in a privacy notice is most important pertaining to uses of information that are not reasonably expected by individuals. Companies should therefore research their users' expectations and conduct a privacy impact assessment (PIA) to assess how the processing will affect the individuals in question, and should implement those findings in the privacy notice. In addition, before launching a privacy notice, companies should test the notice with a group of users to check whether it is easy to understand or was difficult, unclear, or presented other issues.

Layered notice: The ICO reiterates support for layered notices. The approach usually consists of a short notice containing the key information, such as the identity of the organization, the way the organization will use the personal information, and why the organization needs it. Layered notice may contain links that expand each section to its full version, which will contain fuller detail.

"Just-in-time" notices and different disclosure mechanisms: For maximum effectiveness and clarity, the ICO recommends using a combination of techniques to present privacy information to individuals. These techniques include: 

  • Front page notice of unexpected use: The front page provides prominent, early warning of any use of personal information that is likely to be unexpected or objectionable. The privacy policy should be accessible from any page of the organization's website and a full version should be accessible when users search for "privacy notice" or associated terms.

  • "Just-in-time" notice: Just-in-time notices work by appearing on the individual's screen at the point where the user inputs personal information, providing a brief message explaining how the information will be used. This can be in the form of a pop-up text box appearing next to the relevant text or using the "hover over" feature. The notice can be brief and include a link to more detailed privacy information.

  • Separate opt-in boxes for different uses: In order to comply with the requirements for heightened consent under the GDPR, the ICO advises providing a clear and simple way for individuals to indicate separately that they agree to different types of processing, rather than an all-or-nothing consent to all types of uses listed. This can be achieved by using separate opt-in check-off boxes for each, or Yes/No buttons of equal size and prominence listing the different uses or purposes and allowing a separate response for each. If the organization is seeking consent to receive direct marketing materials, then a separate opt-in box should be prominently displayed.

  • Dashboards: Dashboards allow users to easily access their settings and preferences and make necessary changes, including revoking consent to certain uses. Providing access to such dashboards and making reference to this in the privacy notice can assist in complying with both the disclosure requirements and at least some of the individual's right to access their information.

  • Icons, symbols, and videos: Short videos explaining portions of the privacy notice may be a way to convey information clearly to users. Icons and symbols indicating the nature of the use of information can also act as useful reminders that data processing is taking place, especially if that processing is intermittent. These may be especially useful for internet of things (IoT) applications where it is difficult to provide detailed privacy information on the device itself, and in other situations where data is being captured by observation rather than being provided by individuals.  

Transfer to third parties: The Code states that the organization is responsible for any use of users' information by third parties to whom information is transferred. It is the company's responsibility to know and adequately disclose their practices in the privacy notice, including where the organization collects and aggregates information from multiple sources.

GDPR: The code of practice also includes a section specifically addressing compliance with the GDPR. The GDPR includes a longer and more detailed list of information that must be provided in a privacy notice than the U.K. Data Protection Act currently requires, and has more stringent consent requirements. The ICO guidance makes clear that incorporating the mechanisms set forth in the Code will assist companies in complying with the GDPR. As these changes often require a lengthy process and much preparation, the ICO has advised in a previous guidance that companies start their preparation without delay.

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.

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