Controller or processor? What are we?

Philippa DonnJanuary 2025

The importance of establishing if an organisation is acting as a processor or controller

On paper the definitions of controller and processor under GDPR (& UK GDPR) may seem straight-forward, but deciding whether you’re acting as a controller, joint-controller or processor can sometimes be a contentious area. Many a debate has been had between DPOs and lawyers when trying to classify the relationship between different parties.

It’s not unusual for it to be automatically assumed all suppliers providing a service are acting as processors, but this isn’t always the case. Sometimes joint controllership, or separate distinct controllers, is more appropriate. Or perhaps a company is simply providing a service, and is not processing the client’s personal data (other than minimal contact details for a couple of employees).

It’s worth noting service providers (aka suppliers or vendors) will often act as both, acting as controller and processor for different processing tasks. For example, most will be a controller for at least their own employee records, and often for their own marketing activities too.

What GDPR says about controllers and processors

The GDPR tells us a controller means ‘the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data’.

A processor means ‘a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller’.

How to decide if we’re a controller or processor

There are some questions you can ask to help reach a conclusion:

■ Do we decide how and what personal data is collected?
■ Are we responsible for deciding the purposes for which the personal data is used?
■ Do we use personal data received from a client/partner for our own business purposes?
■ Do we decide the lawful basis for the processing tasks we are carrying out?
■ Are we responsible for making sure people are informed about the processing? (Is it our privacy notice people should see?)

If you’re answering ‘yes’, to some or all of these questions, it’s highly likely you’re a controller.

The ICO makes it clear it doesn’t matter if a contract describes you as a processor; “organisations that determine the purposes and means of processing will be controllers regardless of how they are described in any contract about processing services”.

A processor only processes a controllers’ personal data on their behalf and crucially doesn’t use this data for its own business purposes. While a processor may make its own day-to-day operational decisions, it should only process the data in line with the controller’s instructions, unless required to do otherwise by law.

Sometimes overlooked is the fact even if a handful of employees of a service provider only have access to a controller’s personal data it still means the service provider is ‘processing’ the data, and will be a processor.

Why it’s important to confirm your status

Controllers have a higher level of accountability. They are obliged to comply with all data protection principles, such as ensuring the lawfulness of processing, being transparent (e.g. privacy notices), fulfilling privacy rights requests and so on.

Processors do have a number of direct obligations, such as being required to implement appropriate technical and organisation measures to protect personal data. A processor is also responsible for ensuring the compliance of any sub-processors it may use to fulfil their services to a controller. In fact processors are liable for the sub-processors.

The ICO issued a £3m fine to a software company in March 2025 for failing to implement sufficient measures, which you can read about here.

Data processing agreements

There’s a requirement to have an appropriate agreement in place between a controller and a processor. Article 28 of EU / UK GDPR sets out specific requirements for what must be included in the contractual terms.

Such terms are often covered in a Data Processing Agreement/Addendum, but sometimes will be covered in a specific section on data protection within the main contract. (If there’s no DPA, no addendum and no section on data protection that’s a massive red flag!)

Often overlooked is the need to have clear documented instructions from the controller. It can be helpful to have these as an annex to the main contract (or master services agreement), so they can be updated if the processing changes. We’ve written more about the detail of what needs to be covered in contractual terms here. Another area which can get forgotten is sub-processors and international data transfers.

There are times where you’re looking to engage the services of a household name, a well-known and widely used processor. This sometimes leads to limited or no flexibility to negotiate contractual terms. In such cases, it pays to check the terms and, if necessary, take a risk-based view on whether you wish to proceed or not.

Before even looking at the terms, due diligence on prospective processors is a ‘must do’ for controllers, while taking an approach proportionate to the level of risk the outsourced processing poses. And for their part processors need to be prepared to prove their data protection and information security credentials.

Monitoring employees and data protection

Simon BlanchardJuly 2024

Is it transparent, reasonable and proportionate?

There are plenty of reasons why employers might want to monitor staff; to check they’re working, to detect and prevent criminal activity, to make sure people are complying with internal policies, to check their performance, for safety and security reasons, and so on.

With significant advances in technology, there are multiple options available for employees seeking to monitor their workforce, such as:

Camera surveillance, including CCTV and body worn cameras
Webcams and screenshots
Monitoring timekeeping or access control using biometric data
Keystroke monitoring
Internet tracking for misuse
Covert audio recording

Add the growing number of AI-powered solutions into the mix, and the opportunities are seemingly endless. I’ve even seen demos of AI tools which sentiment check emails; scanning the language employees use to detect content which might be discriminatory, bullying or aggressive.

Just because a range of monitoring technologies exist, doesn’t mean we should use them.

A survey commissioned by the UK’s Information Commissioner’s Office in 2023 revealed almost one in five people believe they’ve been monitored by their employer, and would be reluctant to take a job if they knew they were going to be monitored. This research showed 70% of the public believe it’s intrusive to be monitored in the workplace.

However, there is a broad understanding employers might carry out checks on the quality and quantity of their work and an appreciation there may be a necessity to do this proportionately to meet health and safety or other regulatory requirements. Emily Keaney, the ICO’s Deputy Commissioner of Regulatory Policy says “While data protection law does not prevent monitoring, it must be necessary, proportionate and respect the rights and freedoms of workers. We will take action if we believe people’s privacy is being threatened.”

Earlier this year, the ICO did just that, and ordered a Leisure Company to stop using biometric data to monitor their staff. You can read more about the case here: using biometrics to monitor staff

To prevent monitoring employees in an overly intrusive and disproportionate way, it’s crucial to carefully consider any planned monitoring activity and make sure it’s a reasonable thing to be doing.

Workplace monitoring checklist

Here are some of the key considerations to take into account:

1. Is it `lawful, fair and transparent?

To be lawful you need to identify a lawful basis under UK GDPR and meet relevant conditions. Remember, consent would only work where employees have a genuine and fair choice. Often an imbalance of power means consent is not appropriate in an employee context. Employees may feel duty-bound to give consent and therefore there may be an imbalance.

You may be tempted to rely your employment contract with individuals, (i.e the ‘contractual necessity’ lawful basis) but this would need to be genuinely necessary. Many employers may choose to rely on legitimate interests, but this requires a balancing test, and we’d highly recommend conducting and keeping a record of your Legitimate Interests Assessment (LIA).

To be fair you should only monitor workers in ways they would reasonably expect, and in ways which wouldn’t have unjustified adverse effects on them. The ICO says you should conduct a Data Protection Impact Assessment to make sure any monitoring is fair and proportionate.

To be transparent you must be open and upfront about what you’re doing. Monitoring should not routinely be done in secret. Monitoring conducted without transparency is fundamentally unfair. There may however be exceptional circumstances where covert monitoring is justified.

2. Will monitoring gather special category data information?

If monitoring involves special category data, you’ll need to identify a special category condition, as well as a lawful basis. Special category data includes data revealing racial or ethnic origin, religious, political or philosophical beliefs, trade union membership, genetic and biometric data, data concerning health or data about a person’s sex life or sexual orientation.

You may not automatically think this is relevant, but be mindful even monitoring emails, for example, could, without appropriate controls in place, lead to the processing of special category data.

3. Have you clearly set out your purpose(s) for employee monitoring?

You need to be clear about your purpose(s) and not monitor workers ‘just in case’ it might be useful. Personal details captured should not subsequently be used for a different purpose, unless this is assessed to be compatible with the original specified purpose(s).

4. Are you minimising the personal details gathered?

Organisations are required to not collect more personal information than they need to achieve their defined purpose(s). This should be approached with care as many monitoring technologies and methods have the capability to gather more information than necessary. You should take steps to limit the amount of data collected and how long it’s necessary to retain it for.

5. Is the information gathered accurate?

You need to take all reasonable steps to make sure the personal information gathered through monitoring workers is accurate and not misleading, or taken out of context, and people should have the ability to challenge the results of any monitoring.

6. Have you decided how long information will be kept?

Personal information gathered must not be kept for any longer than is necessary. It shouldn’t be kept just in case it might be useful in future. Organisations must have a data retention schedule and delete any information in line with this. The UK GDPR doesn’t tell us precisely how long this should be, but other laws might. Organisations need to be able to justify any retention periods they set.

7. Is the information kept securely?

You must have ‘appropriate technical and organisation measures’ in place to protect personal information. Technical measures include things like firewalls, encryption, multi-factor authentication, and so on. Data security risks should be assessed, access should be restricted, and those handling the information should receive appropriate training.

If monitoring is outsourced to a third-party processor, you’ll be responsible for compliance with data protection law.

8. Are you able to demonstrate your compliance with data protection law?

Organisations need to be able to demonstrate their compliance with UK GDPR. This means making sure appropriate policies, procedures and measures are put in place for workplace monitoring activities. And let’s also consider any monitoring of workers who work from home, or other ‘offsite’ locations. As with everything this must be proportionate to the risks. The ICO says organisations should make sure ‘overall responsibility for monitoring workers rest at the higher senior management level’.

Monitoring people is by its very nature intrusive, it must be proportionate, justified and people should in most circumstances be told it’s happening.

The ICO has published detailed guidance on this: Employment practices and data protection: monitoring workers and the regulator’s overriding message is organisations should carry out a DPIA if they’re considering monitoring their staff.

Data Protection and what the Labour Government should do

Philippa DonnJuly 2024

What should Kier Starmer’s team do about data protection?

After the Conservative Party’s crushing defeat on July 4th, we now have a Labour administration. As the General Election was called, the Data Protection and Digital Information Bill was progressing through Parliament. Although many thought it might be just pass before an Election, the decision by Rishi Sunak to gamble everything on an early election led to the Bill’s abandonment.

The Bill itself was controversial, proposing a mixed bag of changes to data protection and ePrivacy laws. Views within the industry were, it is fair to say, divided.

I’ve asked industry insiders the question; What should the new Government do with UK GDPR, the Privacy and Electronic Communications Regulations (PECR), and AI? Here’s what they say.

Steve Wood, Founder & Director, PrivacyX Consulting and former UK Deputy Information commissioner

“The New Government should firstly take a step back to consider its approach to public engagement on data and AI, particularly with civil society. As they seek to use AI to transform the public sector, a planned and long-term approach to meaningful transparency and engagement is vital. There are good foundations to build on for AI policy and the new Government should look at options to put AI principles on a statutory footing and what additional oversight and coordination is needed to make them effective.

There is scope for a focused AI and Data Bill, learning the lessons of the complexity and confusion in the DPDI Bill and what will really improve the outcomes of the data protection regime – for people and organisations. Changes to GDPR that should remain on table include the new Information Commission reforms, the data protection test for internation transfers and an exemption for analytics cookies.”

You can read more of Steve’s thoughts in his Substack blog – A Digital Policy Memo for the Minister’s Red Box

Chris Combemale, CEO, Data & Marketing Association (DMA)

“The DMA continues to believe that reforming the data protection regime in the UK is fundamental to driving growth, innovation, and wealth creation in the country. Doing so would be a strong sign of the new Government’s commitment to the industry and business. Amongst the most important reforms for DMA members are:

1. Reforms that establish greater certainty for the use of legitimate Interests as a lawful basis particularly attracting and retaining new customers
2. Reforms that clarify how data can be better used to support scientific research and technology development
3. Reforms that reduce bureaucracy for small business
4. Reforms that enable Smart Data schemes to be introduced in appropriate sectors
5. Reforms that reduce the consent requirements for non-intrusive cookies
6. Reforms that update the law to enable beneficial update of automated decision-making like AI while maintaining strong safeguards

These reforms are consistent with the Labour Policy Forum position and indeed were supported by Labour during scrutiny of the former government’s DPDI Bill. The DMA will work closely with the incoming government to ensure these reforms become law.”

Read Chris’ Open Letter to all political parties

Robert Bond, Senior Counsel, Privacy Partnership Law and Chair, DPN Advisory Group

“The new Government needs to ensure that any changes it makes to our data protection regime do not harm our “adequacy” with the EU. However, I would welcome a review of the reliance on Legitimate Interest as a lawful ground for processing to bolster this useful ground. I would like to see a review of PECR and a proactive focus on practical AI legislation.”

Gerald Coppin, Deputy Group Data Protection Officer, Springer Nature

“I feel a Labour government should work on an international effort to harmonise the data privacy laws across major jurisdictions, it could make it easier for businesses to manage regulatory requirements. They could recommend or mandate techniques like differential privacy, federated learning, and synthetic data generation to enable AI development without compromising individual privacy. As well as expanding regulatory sandboxes that allow companies to test innovative AI applications in a controlled environment, while ensuring privacy safeguards are in place. A reduction in paperwork to prove compliance with the different laws would be MOST welcome!!”

Debbie Evans, Managing Director, FTI Consulting

“I want to be optimistic about change however, it’s not going to be without challenge. Whilst I’m not proclaiming any particular political persuasion – my personal hope is that individual rights are given more visibility. Businesses consequently will need to take compliance more seriously as laws strengthen.”

Eduardo Ustaran, Partner, Hogan Lovells

“My view is that the new UK Government should aim to realise the opportunity to place the UK as a global leader in these areas. The UK is in an ideal sweet spot because it is close enough to the EU’s policy objectives of providing the highest levels of protection for personal data and human rights in the face of today’s AI revolution, but also understands the crucial importance of technological innovation for growth and prosperity. That combination is particularly attractive for responsible global businesses to model their regulatory compliance strategies for privacy, cybersecurity and AI. This is a crucial issue for the UK Government to get right and support its primary goal of growing the economy.”

Charles Ping, Managing Director, Europe, Winterberry Group

“Labour has a big task ahead, and by its own admission, limited resources. So using the eco-friendly mantra of reduce, reuse and recycle they should take all three aspects into evolving our data protection legislation. Reduce the wasted time on devising new policy objectives in this area when there was cross party consensus on the currently lifeless Data Protection of Digital Information Bill. Reuse, because the bill is pretty much “oven ready”, if that phrase hasn’t been rendered entirely valueless by a previous administration.

Recycle the old bill and ensure an expedited path through the corridors and meeting rooms of Westminster. I can’t see a new administration (or country) wanting a traditional summer recess, so this legislation should have time to whistle through and start making a difference.”

Eleonor Duhs, Partner and Head of Data & Privacy, Wells Bates LLP

“I think the new Labour Government, as a priority, should deal with the uncertainty created by the Retained EU Law (Revocation and Reform) Act 2023 (“REULA”) about how to interpret the UK’s data protection frameworks. REULA has turned the statue book on its head, with domestic law (whenever enacted) taking precedence over any law that was previously EU law (including UK GDPR). An example of the unintended consequences of this is in the area of exemptions from data subject rights. The Open Rights case (brought before REULA came into force) required the government to provide EU-standard protections for migrants when exercising data subject rights. But because of the reversal of the relationship between the UK GDPR and the Data Protection Act 2018 every other group in society now has a lower standard of protection for their data subject rights, compared with migrants.

This outcome was clearly not anticipated. In order to ensure data protection standards in the UK remain high the new Labour government should bring forward legislation. It could either use the powers in REULA to reintroduce deleted principles in order to bring clarity and legal certainty. Alternatively, the best course of action may be to enact bring forward primary legislation to ensure that the UK statute book is stabilised. Powers to update our data protection frameworks should also be considered to ensure it continues to be current and tracks accepted EU and international standards. This would support growth and avoid the risk of losing the UK’s data adequacy decision which is due to be reviewed next year.”

You can read more from Eleonor on the REULA here

While I appreciate reforming data protection law may prove not to be a high priority for the new Starmer Government, to offer my tuppence, if Labour does nothing else, I’d urge them to revise PECR. It’s desperately out of date, first introduced over 20 years ago, and then updated back in 2009 with the ‘cookie law’. The world has moved on. There were some proposed changes to PECR under the DPDI Bill which I favoured. In particular, a change allowing not-for-profits to take advantage of the so-called soft opt-in exemption to consent for marketing emails / texts. This is currently only available in a commercial context, which I feel is unfair. As others have mentioned, I’d also like to see a revision of the consent rules for website analytics cookies.

Understanding and handling Special Category Data

Philippa DonnJuly 2024

Why is it special and what does data protection law tell us we need to do?

There is a distinct subset of personal data which is awarded ‘special’ protection under data protection law. This subset includes information for which people have been persecuted in the past, or suffered unfair treatment or discrimination, and still could be. These special categories of personal data are considered higher risk, and organisations are legally obliged to meet additional requirements when they collect and use it.

Employees need to be aware special category data should only be collected and used with due consideration. Sometimes there will be a clear and obvious purpose for collecting this type of information; such as a travel firm needing health information from customers, or an event organiser requesting accessibility requirements to facilitate people’s attendance. In other situations it will be more nuanced.

What’s special category data?

Special Categories of Personal Data under UK GDPR (and it’s EU equivalent), are commonly referred to as special category data, and are defined as personal data revealing:

Racial or ethnic origin e.g. diversity and inclusion data
Political opinions
Religious or philosophical beliefs
Trade union membership

The definition also covers:

Genetic data
Biometric data (where this is used for identification purposes)
Data concerning health e.g. medical records, sickness records, accessibility requirements and so on.
Data concerning a person’s sex life or their sexual orientation. E.g. diversity and inclusion data

Inferring special category data

Sometimes your teams might not realise they’re collecting and using special category data, but they might well be.

It’s likely if you have inferred or made any assumptions based on what you know about someone, for example they’re likely to have certain political opinions, or likely to suffer from a certain health condition, this will mean you are handling special category data.

There was an interesting ICO investigation into an online retailer which found it was targeting customers who’d bought certain products, assuming from this they were likely to be arthritis sufferers. This assumption meant the retailer was judged to be processing special category data.

If you collect information about dietary requirements these could reveal religious beliefs, for example halal and kosher. It’s also worth noting in 2020 a judge ruled that ethical veganism qualifies as a philosophical belief under the Equality Act 2010.

Other ‘sensitive’ data

There’s sometimes confusion surrounding what might be considered ‘sensitive’ data and what constitutes special category data. I hear people say “why is financial data not considered as sensitive as health data or ethnic origin?’ Of course, people’s financial details are sensitive and organisations do still need to make sure they’ve got appropriate measures in place to protect such information and keep it secure. However, UK GDPR (and EU) sets out specific requirements for special category data which don’t directly apply to financial data.

To understand why, it’s worth noting special protection for data such as ethnicity, racial origin, religious beliefs and sexual orientation was born in the 1950s, under the European Convention on Human Rights, after Europe had witnessed people being persecuted and killed.

Special Category Data Requirements

In a similar way to all personal data, any handling of special category data must be lawful, fair and transparent. Organisations need to make sure their collection and use complies with all the core data protection principles and requirements of UK GDPR. For example;

Do you have a clear purpose and reason for collecting/using special category data?
Have you identified a lawful basis? For example:
- is this data necessary in order for you to fulfil a contract you have with the individual?
- Are you legally obliged to hold this data?
- Should you be seeking their consent?
- Or is there another appropriate lawful basis? Quick Guide to Lawful Bases.
Have you told people what their special category data will be used for? What does your Privacy Notice tell people? Have people seen your Privacy Notice?
Can you minimise the amount of special category data you are collecting?
Have you decided how long this data will be kept for?
How will you make sure this data is not used for another different purpose?
What security measures will you put in place? e.g. can you limit who has access to this data?

What makes special category data unique is it will be considered a higher risk than other types of data, and also requires you to choose a special category condition.

Other key considerations and requirements

Risk Assessments

Confirm whether you need to conduct a Data Protection Impact Assessment for your planned activities using special category data. DPIAs are mandatory for any type of processing which is likely to be high risk. This means a DPIA is more likely to be needed when handling special category data. That’s not to say it will always be essential, it really will depend on the necessity, nature, scale and your purpose for using this data.

Special Category Condition

Alongside a lawful basis, there’s an additional requirement to consider your purpose(s) for processing this data and to select a special category condition. These conditions are set out in Article 9, UK GDPR.

(a) Explicit consent
(b) Employment, social security and social protection (if authorised by law)
(c) Vital interests
(d) Not-for-profit bodies
(e) Made public by the data subject
(f) Legal claims or judicial acts
(g) Reasons of substantial public interest (with a basis in law)
(h) Health or social care (with a basis in law)
(i) Public health (with a basis in law)
(j) Archiving, research and statistics (with a basis in law)

Associated condition in UK Law

Five of the above conditions are solely set out in Article 9. The others require specific authorisation or a basis in law, and you’ll need to meet additional conditions set out in the Data Protection Act 2018.

If you are relying on any of the following you also need to meet the associated condition in UK law. This is set out in Part 1, Schedule 1 of the DPA 2018.

Employment, social security and social protection
Health of social care
Public health
Archiving, research and statistics.

If you are relying on the substantial public interest condition you also need to meet one of 23 specific substantial public interest conditions set out in Part 2 of Schedule 1 of the DPA 2018.

The ICO tells us for some of these conditions, the substantial public interest element is built in. For others, you need to be able to demonstrate that your specific processing is ‘necessary for reasons of substantial public interest’, on a case-by-case basis. The regulator says we can’t have a vague public interest argument, we must be able to ‘make specific arguments about the concrete wide benefits’ of what we are doing.

Appropriate Policy Document (APD)

Almost all of the substantial public interest conditions, plus the condition for processing employment, social security and social protection data, require you to have an APD in place. The ICO Special Category Guidance in includes a template appropriate policy document.

Privacy Notice

A privacy notice should explain your purposes for processing and the lawful basis being relied on in order to collect and use people’s personal data, including any special category data. Remember, if you’ve received special category data from a third party, this should be transparent and people should be provided with your privacy notice.

Data breach reporting

You only have to report a breach to the ICO if it is likely to result in a risk to the rights and freedoms of individuals, and if left unaddressed the breach is likely to have a significant detrimental effect on individuals. Special category data is considered higher risk data, and therefore if a breach involves data of this nature, it is more likely to reach the bar for reporting. It is also more likely to reach the threshold of needing to notify those affected.

In summary, training and raising awareness are crucial to make sure employees understand what special category data is, how it might be inferred, and to know that collecting and using this type of data must be done with care.

Data Sharing Checklist

Philippa DonnJune 2024

Controller to Controller Data Sharing

Data protection law doesn’t stop us sharing personal data with other organisations, but does place on us a requirement to do so lawfully, transparently and in line with other key data protection principles.

Organisations often need to share personal data with other parties. This could be reciprocal, one-way, a regular activity, ad-hoc or a one off.

Quick Data Sharing Checklist

Here’s a quick list of questions to get you started on how to share personal data compliantly.

(The focus here is on sharing data with other controllers, i.e. other organisations who will use personal data for there own purposes. There are separate considerations when sharing data with processors, such as suppliers and service providers). Controller or processor, what are we?

1. Is it necessary?

It may be possible to achieve your objective without sharing personal data at all, or perhaps the data could be anonymised.

2. Do we need to conduct a risk assessment?

Check if what you’re planning to do falls under the mandatory requirement to complete a Data Protection Impact Assessment. Depending on the nature and sensitivity of the data it might be a good idea to conduct one anyway. Quick DPIA Guide.

3. Do people know their data is being shared?

Transparency is key, so it’s important to make sure sure people know their personal details are being shared. Would they reasonably expect their personal data to be shared in this way? Is it covered in your Privacy Notice?

In some situations it may not be possible to be transparent, in which case a robust and defensible justification is needed.

4. Is it lawful?

To be lawful we need a lawful basis and we need to meet the relevant conditions of the basis we’ve chosen. For example, if we’re relying on consent is this specific, informed and an unambiguous indication of the person’s wishes. If we’re relying on legitimate interests, have we balanced our interests with those of the people whose data we’re sharing? Quick guide to lawful bases.

5. Can we reduce the amount of data being shared?

Check what data the other organisation actually needs, you may not need to share a whole dataset, a sub-set may suffice.

6. Is it secure?

Agree appropriate security measures to protect the personal data, both when it’s share and at rest. This includes security measures where the other organisation is being given access to your systems. Are controls in place to make sure only those who need access, have access?

7. Can people still exercise their privacy rights?

Both parties should be clear about their responsibilities to fulfil privacy rights, and it should be easy for people to exercise them.

8. How long with the personal data be kept for?

Consider if it’s appropriate to have specific arrangements in place for the shared data to be destroyed after a certain period of time.

9. Is the data being shared with an organisation overseas?

If the personal data is being shared with a business located outside the UK, it will be necessary to consider the international data transfer rules.

10. Do we need a data sharing agreement?

UK GDPR does not specify a legal requirement to have a agreement in place when data is shared between organisations acting as controllers. However, the UK ICO considers it ‘good practice’ as and agreement can set out what happens to the data at each stage, and agreed standards, roles and responsibilities. ICO Data Sharing Agreement guidance.

Other data sharing considerations

Are we planning to share children’s data?

Proceed with care if you are sharing children’s data. You need to carefully assess how to protect children from the outset, and will need a compelling reason to share data relating to under 18s. This is likely to be a clear case of conduct a DPIA!

Is the other organisation using data for a ‘compatible purpose’?

Consider the original purpose the data was collected for, and whether the organisation you’re sharing it with will use it for a similar purpose. It’s worth noting the UK Department of Education came a cropper for sharing data for incompatible purposes.

Is data being shared as part of a merger or acquisition?

If data is being shared as part of a merger or acquisition, the people the data relates to should be made aware this is happening. You’d want to be clear the data should be used for a similar purpose. Robust due diligence is a must, and perhaps a DPIA to assess and mitigate any risks.

Is it an emergency situation?

We’ve all heard the tales about people being scared they’ll be breaching data protection rules if they share personal data with paramedics, doctors or others in emergency situations. The ICO is clear on this point: in an emergency you should go ahead and share data as is necessary and proportionate.

The ICO has a Data Sharing Code of Practice, full useful information about how the Regulator would expect organisations to approach this.

The three foundations of good data governance

Simon BlanchardJanuary 2024

People, processes and technologies

Creating a clear data governance strategy is crucial to making sure data is handled in line with your organisation’s aims and industry best practice.

Data governance is often thought of as the management process by which an organisation protects its data assets and ensures compliance with data laws, such as GDPR. But it’s far broader than compliance. It’s a holistic approach to data and should have people at its very heart. People with defined roles, responsibilities, processes and technologies which help them make sure data (not just personal data) is properly looked after and wisely used throughout its lifecycle.

How sophisticated your organisation’s approach needs to be will depend on the nature and size of your business, the sensitivity of the data you hold, the relationships you have with business partners, and customer or client expectations.

Benefits of good data governance

There are many benefits this activity can bring, including:

Minimising risks to the business, your employees, customers and suppliers
Giving your people clarity around expected behaviours and best practices
Embedding compliance requirements

A strong data governance approach can also help an organisation to make the most of their data assets, improve customer experience and benefits, and leverage competitive advantage.

Data governance – where to start?

There are three foundational elements which underpin successful data governance – People, Processes and Technologies.

People

Engaging with stakeholders across the organisation to establish and embed key roles and responsibilities for data governance.

Many organisations look to establish a ‘Data Ownership Model’ which recognises data governance is an organisational responsibility which requires close collaboration across different roles and levels, including the delegation of specific responsibilities for data activities.

Here’s some examples of roles you may wish to consider:

Data strategy lead – such as Chief Data Officer / Chief Digital Officer
Data protection lead – such as Data Protection Officer (DPO), if you have one
Information security lead – such as Chief Information Security Officer (CISO) or Chief Technology Officer
Information asset owners (or data owners) – leaders of business functions / teams which collect and/or use personal data for particular purposes. Such as HR, Marketing & Sales, Finance, Operations, and so on.
Data specialists – heavy users of complex datasets, such as data analysts and data scientists.
System owners – the people who manage the key systems which hold personal data, such as IT managers.

Processes

Think about all the processes, policies, operating procedures and specialist training provided to guide your employees and contractors to enable them to handle data in line with your business expectations – as well to comply with the law. For example:

Data protection policies and provision of relevant training
Specific procedures for handling individual privacy rights requests and data breaches
Information security policies and provision of relevant training
Standard Operating Procedures and handouts

Without these in place and regularly updated, your people can’t possibly act in the ways you want and expect them to.

In my experience, success comes from keeping these items concise, and as relevant and engaging as possible. They can easily be forgotten or put in the ‘maybe later’ pile… a little time and effort can really pay dividends!

Technologies

The technologies which underpin all data activities across the data lifecycle. For example, your HR, marketing & CRM, accounting and other operational systems you use regularly. Data governance requires those responsible for adopting technologies to ensure appropriate standards and procedures are in place which ensure appropriate:

Accessibility and availability standards
Data accuracy, integrity and quality management
Privacy and security

Looking at privacy technology in particular, the solutions available have really progressed in recent years in terms of both their capability and ease of use. Giving DPOs and others with an interest in data protection clear visibility of where the risks lie, help to prioritise them and pointers to relevant solutions. They can also help provide clear visibility and oversight to the senior leadership team.

The ‘Accountability Principle’

Data governance goes hand in hand with accountability – one of the core principles under GDPR. This requires organisations to be ready to demonstrate the measures and controls they have to protect personal data and in particular, show HOW they comply with the other data protection principles.

Appropriate measures, controls and records need to be in place to evidence accountability. For example, a Supervisory Authority (such as the ICO) may expect organisations to have:

Data protection programme, with clear data ownership & governance and regular reporting up to business leaders
Training and policies to guide staff
Records of data mapping exercises and processing reviews, such as an Information Asset Register and Record of Processing Activities
Risk assessments, such as Data Protection Impact Assessments and Legitimate Interests Assessments
Procedures for handling of individual privacy rights and data breaches
Contracts in place between organisations which include the relevant data protection clauses, including arrangement for restricted international data transfers
Data sharing agreements

Ready to get started?

If you’re keen to reap the benefits of improved compliance and reduced risk to the business, the first and crucial step is getting buy-in from senior leadership and a commitment from key stakeholders, so I’d suggest you kick-off by seeking their support.

What types of data protection risk are there?

Simon BlanchardAugust 2023

Data protection risks come in all shapes and sizes. They are not always easy to identify. How do we know what to look for and how serious they could it be?

There are risks to individuals (e.g. employees, customers, patients, clients etc) which are paramount under data protection laws. But there are also commercial and reputational risks for businesses relating to their use for data.

Risks could materialise in the event of a data breach, failure to fulfil individual privacy rights (such as a Data Subject Access Request), complaints, regulatory scrutiny, compensation demands or even class actions.

We should recognise our service & technology providers, who may handle personal data on our behalf, could be a risk area. For example, they might suffer a data breach and our data could be affected, or they might not adhere to contractual requirements.

International data transfers are another are where due diligence is required to make sure these transfers are lawful, and if not, recognise that represents a risk.

Marketing (either in-house, agency or tech platforms) could also be a concern, if these activities are not fully compliant with ePrivacy rules – such as the UK’s Privacy and Electronic Communications Regulations (known as PECR). Even just one single complaint to the regulator could result in a business finding themselves facing a PECR fine and the subsequent reputational damage.

The seven core data protection principles under UK and EU GDPRs are a great place to start when trying to identify where data protection risks may lie.

Data protection principles

1. Lawfulness, fairness and transparency

Is what we’re doing legal? Have we identified a suitable lawful basis, and are we meeting the conditions of this lawful basis? Is it fair and ethical? Are we being transparent about what we do in our privacy notices? See DPN Lawful Basis Guide

2. Purpose limitation

Are we only using personal data in the ways we told people it would be used for? We might want to use their data in new ways, but are these compatible with the original purpose(s) we gathered the data for? If we surprise people, they’ll be more likely to complain.

3. Minimisation

Are we collecting, using and holding onto more data than we actually need? Is some data collected and kept ‘just in case’ it might be useful in future?

4. Accuracy

Inaccurate or out-of-date personal information could lead to false assumptions which could come back to bite us.

5. Storage limitation

Hoarding data for longer than necessary could mean the impact of a data breach is much worse. Over-retention of people’s data could be exposed when handling a Data Subject Access Request, or an or Erasure Request. See DPN Data Retention Guidance

6. Information Security

Have we implemented robust security measures and controls to make sure personal data is protected, when at rest on our systems and when its transferred?

7. Accountability

Are we in a good position to defend what we do with the data? If scrutinised, do we have suitable records & evidence to demonstrate that we’ve taken data protection seriously? See Quick Guide to Data Governance

The lengths we go to try and embed these principles across our organisation will clearly differ depending on the sensitivity of personal data involved and what we’re using it for. When considered what security measures are appropriate, we should take a proportionate approach.

Some activities can automatically bring with them more risk. For example; handling special category data (such as health data, biometrics, sexual preference and ethnicity), collecting children’s data, using innovative technology such as AI and any activities which could result in an automated decision being made about someone.

We need to consider people’s privacy rights and have procedures in place to handle any requests we receive. For example, their right to be informed, right of access, right to object, right to erasure and so on. An inability to fulfil such requests may draw unwelcome attention.

In certain circumstances it’s mandatory to conduct a Data Protection Impact Assessment (DPIA). Conducting an assessment can often be useful, even if what you’re doing doesn’t fall under the mandatory criteria. It can help us to identify data risks from the outset so you can put measures in place to mitigate risks before they have any opportunity to become an issue. See DPN DPIA Guide.

Mistakes can happen

Here are some issues or gaps which could lead to data protection risks coming to the surface.

People-related risks – such as lack of training and lack of governance or ownership
Process risks – such as poor data handling procedures or manual processing on Excel / Sheets.
Technology risks – such as ineffective controls on core systems, or ineffective archiving/deletion processes.

If you don’t know where your risks lie, you won’t have a handle on how much risk the business is carrying. You may have several significant risks, but multiple low-level risks could also prove damaging.

Listen back to our online discussion: Managing and Assessing Data Protection Risks

Privacy Notices Quick Guide

Philippa DonnMay 2023

The right to be informed

All businesses need an external facing Privacy Notice, aka Privacy Policy, if collecting and handling people’s personal information.

Data protection law tells us we must provide people with easily accessible and specific privacy information when we collect their data. This guide sets out the key considerations and core requirements our Privacy Notices.

Controller or processor? What are we?

The importance of establishing if an organisation is acting as a processor or controller

What GDPR says about controllers and processors

How to decide if we’re a controller or processor

Why it’s important to confirm your status

Data processing agreements

Related Articles

Monitoring employees and data protection

Is it transparent, reasonable and proportionate?

Workplace monitoring checklist

Related Articles

Data Protection and what the Labour Government should do

What should Kier Starmer’s team do about data protection?

Related Articles

Understanding and handling Special Category Data

Why is it special and what does data protection law tell us we need to do?

What’s special category data?

Inferring special category data

Other ‘sensitive’ data

Special Category Data Requirements

Other key considerations and requirements

Risk Assessments

Special Category Condition

Associated condition in UK Law

Appropriate Policy Document (APD)

Privacy Notice

Data breach reporting

Related Articles

Data Sharing Checklist

Controller to Controller Data Sharing

Quick Data Sharing Checklist

Other data sharing considerations

The three foundations of good data governance

People, processes and technologies

Benefits of good data governance

Data governance – where to start?

People

Processes

Technologies

The ‘Accountability Principle’

Related Articles

What types of data protection risk are there?

Data protection principles

1. Lawfulness, fairness and transparency

2. Purpose limitation

3. Minimisation

4. Accuracy

5. Storage limitation

6. Information Security

7. Accountability

Mistakes can happen

Related Articles

Privacy Notices Quick Guide

The right to be informed

Related Articles

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