UK Update - Information Commissioner's Priorities

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The UK Information Commissioner's Office (ICO), responsible for administering the GDPR and privacy laws in the UK, has published its Regulatory Action Policy, setting out its objectives and priorities for the coming years. It aims to "create an environment" to protect individuals while, at the same time, ensuring that business can "operate and innovate efficiently in the digital age".

Enforcement objectives

Not surprisingly in view of recent data breaches and media scandals, the ICO will focus on violations involving highly sensitive information, affecting large groups of people, or affecting vulnerable people. It will target repeat, wilful and serious miscreants. It will take into account the steps taken by the business to mitigate harm and the manner in which the violation came to its notice.

It will take particular interest in breaches involving novel issues and technologies and a high degree of intrusion – pay attention to those Data Protection Impact Assessments!

Policy objectives

The aims to be proactive in identifying and mitigating emerging risks "arising from technological and societal change" – think AI and (again) targeted content on social media platforms.

The areas the ICO has "actively identified" as raising potential risks to individuals, and where it will take "proactive action" to study and head off risks in the next year, are listed below. The ICO will concentrate resources accordingly.

  • Large scale data and cyber security breaches involving financial or sensitive information
  • AI, big data and automated decision making
  • Web and cross device tracking for marketing (including for political purposes).
  • Privacy impacts for children (including Internet of Things connected toys and social media/marketing apps aimed at children)
  • Facial recognition technology applications
  • Credit reference agencies and data broking
  • Use and sharing of law enforcement data, including intelligence systems
  • Right to be forgotten/erasure applications.

In practice?

The ICO is currently consulting with industry in relation to the Adtech and the electronic advertising ecosystem which, it has indicated, raises serious privacy concerns.

Our review of recent ICO decisions, and public press releases and statements, as well as our experience in dealing with the ICO, suggests that there are three broad areas where the ICO is particularly reactive and responsive to risk.

Nuisance marketing

The ICO publishes data quarterly, highlighting the volume of data subject complaints it has received. The volume of complaints drives some ICO enforcement priorities. During 2018, there was a significant focus on nuisance telephone marketing, and this remains an area of focus. The ICO receives between 3,500 and 4,500 complaints each month about nuisance telephone marketing (including live calls and robo-calls).

Marketing calls, emails, texts and faxes are governed in the UK by the Privacy and Electronic Communications Regulations (PECR), which implement the e-Privacy Directive in the UK. Until these laws are replaced by the anticipated European e-Privacy Regulation, breaches attract maximum penalty of £500,000, lower than breaches of the GDPR. Expect fines to increase when the new regulation is introduced.

While the ICO has not identified nuisance marketing as a regulatory priority, we expect it will continue to be a key area, because of the volume of complaints by individuals. Not say, these can be low-hanging fruit. The ICO's enforcement strategy also includes disrupting the ability of individuals to set up companies or act as company officers, when they are associated with companies that knowingly breach PECR.

By contrast, the ICO has not been active in enforcing the cookie rules under PECR, as it has typically received fewer than one hundred complaints a month on this topic.

Breaches

The ICO also publishes statistics on the number of breach notifications it has received. Before the GDPR, the ICO received around 700 notifications each quarter. By contrast in Q2 2018/19 (the most recent release) the ICO received notifications of 4,056 data security incidents.

The overwhelming majority of these notifications relate to disclosure of data. As said above, data breaches remain a key focus of action. Most recent fines, for personal data breaches, relate to breaches before the GDPR; however, on at least two occasions the ICO issued its then maximum fine of £500,000.

In our experience the ICO seems to triage data breach notifications and the response will depend on the perceived severity

Data subject rights

The ICO does not routinely publish statistics on the number of complaints about the exercise of data subject rights. However, in 2016, it noted that almost half of complaints received related to subject access requests and the difficulties people have accessing their information.

There is a particular risk that if several complaints are made about similar issues, the ICO will investigate the policies and procedures in place.

Brexit

The ICO has provided guidance on the situation following Brexit. If the Withdrawal Agreement is accepted by the UK Parliament then the GDPR will continue to apply in the UK during the transition period (for how long will this be relevant?!). If a no-deal Brexit occurs:

  • The EEA is considered adequate so data flows from the UK to the EEA can continue.
  • Legacy safeguards such as standard contractual clauses will continue to be valid. These were issued by the European Commission and the ICO anticipates preparing updated UK standard contractual clauses.
  • The US-EU Privacy Shield is still a valid safeguard for data transfers providing the US entity updates the privacy policy to include the language specified by the US Department of Commerce.

The Information Commissioner has made interventions on the need for strong international cooperation and collaboration, given that global data flows produce shared issues in multiple jurisdictions.

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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JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

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Collection of Information

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Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

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How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. 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. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

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Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

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You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

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You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

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Changes in Our Privacy Policy

We reserve the right to change this Privacy 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 our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

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How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

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There are different types of cookies and other technologies used our Website, notably:

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Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

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If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

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Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

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