Managing the right to erasure

November 2023

Ten tips to tackle erasure requests

What data should you erase? When can you refuse? And, on a technical level, how do you make sure everything is actually deleted, especially if held on multiple systems?

Fulfilling people’s privacy rights aren’t easy, and GDPR’s Right to Erasure can raise complex challenges. Add to this the tight timeframe to action requests, or bulk requests from third parties, and it can turn into a bit of a minefield.

We’ve got some tips to help navigate around the quicksand. But first, a little refresher on what the Right of Erasure means.

What is the Right to Erasure?

As the name suggests, a person has the right to request their personal data is erased from your systems if you’ve no longer have a compelling reason to keep it.

You may hear it referred to as the ‘Right to be Forgotten’. This stems from a decision in 2014 by the Court of Justice of the EU which recognised the right of EU citizens to request the removal of links to personal information on search engines.

GDPR took this ruling a step further and enshrined a broader right into EU law, taking it beyond the context of publicly available personal information. Under the post-Brexit spin-off, UK GDPR the right remains the same.

People have the right to submit an erasure request to any organisation operating within the UK/EU or organisations in other territories which handle the data of UK/EU citizens. It’s not an absolute right, and there are circumstances in which it can be denied.

When does the right to erasure apply?

You need to fulfil a person’s request for erasure in the following circumstances;

  • It’s no longer necessary for the organisation to hold onto the personal data of an individual for the purposes it was collected
  • They gave you their consent and now wish to withdraw this consent
  • You’re relying on legitimate interests as your lawful basis to handle their data, they object to this, and you have no compelling and overriding legitimate interest to continue
  • They gave you their details for direct marketing purposes and no longer want to receive communications. (You are permitted to keep a minimised record on a suppression file).
  • You’re fulfilling a legal ruling or legal obligation to erase the data
  • You’re processing a child’s data to provide information services (i.e. online services)
  • You’re handing their data unlawfully

The last point, a general ‘catch-all’, is a tricky one to balance, as there may be many reasons why personal data could be processed unlawfully.

For example, the handling of personal data might be considered unlawful if it’s inaccurate, or if necessary information about your processing has not been provided in a privacy notice.

When can you refuse an erasure request?

The right to erasure doesn’t apply when you’re holding personal data for the following reasons:

  • to exercise the right of freedom of expression and information
  • to comply with a legal obligation
  • for the establishment or defence of legal claims
  • to perform a task carried out in the public interest or when exercising and organisation’s official authority
  • for public interest in the area of public health
  • for archiving purposes in the public interest, scientific or historical research or statistical purposes (where erasure would make this impossible or seriously impair your objectives)

Under UK GDPR there are two specific circumstances where the right to erasure doesn’t apply to special category data. Further information about these exemptions can be found in the ICO erasure guidance.

It’s also important to consider whether you have a contract in place with the individual, which requires the processing of their data, and the impact on this of the erasure request.

There may also be grounds for a refusing a request where you can justify it’s manifestly unfounded or excessive. See the ICO’s guidance on exemptions.

If you refuse to comply with a request, you must explain why and tell the individual they have the right to raise a complaint with the ICO (or other relevant supervisory authority).

There are many variables at play; each request needs to be assessed on a case-by-case basis. This is where the devil really is in the detail.

10 tips for handling erasure requests

1. Awareness

Someone can request their data is erased, either in writing or verbally. They might make this request to anyone in your organisation. So, everyone needs to know how to recognise this type of request, what to do if they receive one, who to direct it to and so on.
Awareness campaigns, training and easy-to-understand policies all play their part in getting key messages across to all staff.

2. Identity verification

You clearly don’t want to delete someone’s details unless you are absolutely sure they are who they say they are. Sometimes this will be obvious, but in other circumstances you’ll need to ask for verification of identity. However, if the deletion would have no negative impact on the individual, for example they are only on your marketing lists, you may feel asking for proof of identification is unnecessary.

When asking for proof of id only ask for the minimum amount of information necessary to confirm identity. Don’t accumulate more information such as copies of passports or driving licences, unless it’s justified, and remember to delete these too!

If a request is received via another organisation, make sure this third party definitely has the authority to act on behalf of the individual in question. The responsibility lies with the third party to provide any necessary evidence to prove this. Bear this in mind if you’re the third party!

3. Technical measures

Your customers might think deleting their data is as simple as clicking a button. If only it were that easy!

It can be difficult to locate, identify, assess and properly delete data – especially if it’s held on many different systems. You might hold records on emails, backed-up systems, on the cloud… all must be deleted.

Make sure your systems, applications and databases allow the easy identification and deletion of individuals. You may also need to assess the implications of deletion; it can impact on how different software works.

This is where the concept of Data Protection by Design really supports businesses. If from the outset of any new project or initiative you make sure you factor in managing individual data rights, it will make life much easier in the long run.

It’s worth reiterating – the right to erasure extends to deleting data from backups. However, the ICO recognises the inherent difficulties here and says, “the key issue is to put the backup data ‘beyond use’, even if it cannot be immediately overwritten.”

4. Timeline

You don’t have long to comply with requests, so keeping track of time is crucial. The request must be actioned without ‘undue delay,’ and in any case within one calendar month of receiving it.

You may be able to extend this by up to two months if it’s particularly complex. If you need to extend, make sure you tell the individual before the first month is up, giving them clear reasons for the delay – reasons you must be ready to explain to the regulator if necessary.

5. Who else holds their data?

The right to erasure doesn’t just apply to the records your organisation holds. You’re also expected to tell other organisations to whom you’ve disclosed the personal data.

Having a clear understanding of all your suppliers, any other organisations you share personal data with, means you can efficiently contact them and inform them of erasure requests.

You don’t have to do this if it would prove impossible or involves disproportionate effort. (But again, you must be able to justify this is the case).

6. Public domain data

The Right to Erasure also applies to personal data which has been made public in an online environment (‘The Right to be Forgotten’).
You need to be ready to take reasonable steps to inform other organisations who are handling the personal data; asking them to erase links to, copies of, or replication of the data.

What’s ‘reasonable’ will depend on available technology and the cost of implementation. This expectation scales with size; the bigger your organisation and the more resources you have, the more you’ll be expected to do.

7. Children’s specific rights

Children have special protection under data protection law, and the right to erasure is particularly relevant when a child has given their consent (or their parent/guardian) and at a later stage (even when they’re an adult) want their personal information removed, especially if it’s available on the internet. Baking in the ability to delete children’s information from the start is crucial.

8. Exemptions

It’s helpful to have a clear checklist of the exemptions that might apply. They don’t all apply in the same way, so be sure to examine each exemption on a case-by-case basis. The ICO exemptions guide is a good starting point.

9. Maintain a log

How do we delete someone, but also prove we have done it? Feels ambiguous doesn’t it?

You’re allowed to keep a log of erasure requests, actions taken and justifications for these. You need to do this to demonstrate compliance.
However, be sure to make sure this is kept securely and only keep the minimum amount of information necessary. I know some organisations who’ve taken the step of making sure this log is pseudonymised for extra protection.

10. Minimisation and retention

The right to erasure (and indeed other privacy rights, such as DSARs) can be less complex if we try to stick to two of the core data protection principles; data minimisation and data retention (storage limitation).

By collecting less data in the first place, using it in limited ways and only keeping it for as long as we need it, means there’s less data to trawl through when we get a request to delete it.

Sounds simple, less easy in practice, but worth the effort. Data retention guide

UK data reform – key proposals

November 2023

Data Protection and Digital Information Bill – what might be on the cards?

I was beginning to think the planned changes to data protection law may slip by the wayside, but with the Data Protection and Digital Information Bill (DPDI) being included in this month’s King’s Speech, there may be a concerted drive to try and get the Bill passed into law before the next election. It seems a good time to remind ourselves what might be in store.

The Government’s stated aim in reforming UK data laws is to ease the burden on businesses, particularly smaller ones. GDPR is perceived by some to be overly burdensome, onerous, and at times a ‘box-ticking’ exercise.

What’s proposed and what might these changes mean in practice?

Firstly, in our opinion here at the DPN there’s nothing massively radical about the DPDI Bill. The core data protection principles, individual privacy rights and controller/processor obligations will remain the same. Yes, there’ll still be a need for detailed contracts between clients and their suppliers. Data protection and our suppliers

For many large organisations which operate across EU / global markets, as well as the UK, it could be mostly business as usual with EU GDPR remaining the benchmark.

There’s unlikely to be a huge impact on most small to medium sized businesses whose processing is not particularly large scale or sensitive. Existing law already provides extra flexibility for these SMEs, for example they may not need to appoint a Data Protection Officer, or to create and maintain a Record of Processing Activities.

For others depending on their size, nature of their business and operational structural, it may necessitate changes and potential efficiencies.

Remember, nothing is set in stone yet!

8 key data reform points

The Bill is over 200 pages long, so we’ve selected some broad top-level points, summarising what’s proposed and our take on these potential changes.

1. Record keeping & Records of Processing Activities (RoPA)

Currently organisations (both controllers and processors) are required to keep a RoPA, however there’s a limited exemption for organisations with less than 250 employees where the processing is not high risk and does not involve special category or criminal convictions data. The UK’s Information Commissioner’s office has a published template covering the requirements for what information should be included in a RoPA.

What’s proposed?

The requirement to have a RoPA as stipulated under GDPR will be removed. Organisations which carry out ‘high risk’ processing would be required to keep ‘appropriate records’. Other organisations would still be under an accountability obligation to make sure appropriate measures are in place to comply with data protection law and protect personal data.

Our take on scrapping the RoPA requirement

A RoPA is a valuable business asset, to identify and keep track of what data you have and where, what it’s used for, your lawful basis, any international data transfers and so on. It’s fundamental to many other data protection processes. It can prove invaluable in getting to grips with the full scope of your processing, identifying data risks, assisting with transparency requirements (e.g. privacy notices), fulfilling individual privacy rights requests and handling data breaches.

However, we know from DPN audience surveys creating and maintaining a RoPA can be a real headache for organisations. Many say their current records don’t fully meet GDPR requirements or ICO expectations. For some businesses, creating the RoPA can lead to duplication of effort and many businesses have taken a risk-based approach, focusing on their main risk areas.

We wouldn’t recommend ditching any hard work you may have already done to create your RoPA, because you can still gain benefit from it. If your RoPA isn’t complete, this new Bill could take the pressure off somewhat. For smaller businesses (below the RoPA threshold) we would recommend keeping some form of ‘basic’ record of your activities, in line with the new Bill.

2. Data Protection Risk Assessments

Currently organisations are required to conduct a Data Protection Impact Assessment (DPIA) for ‘high-risk’ processing activities. The ICO and many EU regulators provide a list of examples of when a DPIA must be conducted (and when it might be a good idea). UK/EU GDPR sets out what criteria should be included in these assessments.

What’s proposed?

The specific requirements relating to a DPIA will be removed. Organisations will need to conduct risk assessments for ‘high risk’ processing, but will have more flexibility and won’t be tied to specific DPIA requirements or templates.

Our take on scrapping DPIAs 

Increased flexibility for organisations regarding when and how they conduct risk assessments should be welcomed. However, if you currently have an effective risk screening process and DPIA template which works for your organisation, and many do, you may decide there’s no reason to ‘fix something that’s not broken’. Also, don’t forget you may still be under an obligation to conduct DPIAs if subject to EU GDPR.

DPIAs are a well-established method to identify and mitigate privacy risks prior to the launch of any project involving personal data. We recognise some organisations may choose to benefit from this new flexibility and look for efficiencies by adopting a streamlined and perhaps bespoke process for risk assessments.

3. Senior Responsible Individual for data protection

Currently some (but certainly not all) organisations fall within the mandatory requirement to appoint a Data Protection Officer. Others have voluntarily chosen to appoint one. It’s worth noting a DPO’s position within the business, responsibilities and tasks are mandated under UK GDPR.

What’s proposed?

It’s proposed the requirement to appoint a DPO will be scrapped. Public authorities and other organisations carrying out ‘high risk’ processing will be required to appoint a Senior Responsible Individual (SRI) – someone accountable in the business for data protection compliance. This individual must be a member of senior management.

The proposed changes are also likely to impact on what ‘accountability’ looks like, and what businesses would be expected to have in place to demonstrate their compliance with data protection law. Currently the ICO has a detailed accountability framework. We understand a new ‘risked-based accountability framework’ will be introduced, requiring organisations to have in place a Privacy Management Programme, with flexibility to tailor this to suit the scale and nature of the organisation’s specific processing activities. It’s thought likely any existing accountability measures in place to comply with GDPR would not have to be changed.

Our take DPO requirement changes

There’s been plenty of confusion about which organisations are required to appoint a DPO. Some businesses have felt they needed to appoint one when in fact they didn’t need to. Others have appointed DPOs virtually in name only, without fully appreciating the legal obligations relating to the role. DPO myth buster

This change will give businesses more flexibility, but equally it could muddy the waters and potentially lead to conflicts of interest. More clarification is needed on exactly how this role should operate, in comparison to the current DPO role.

For us, it currently raises more questions than answers. For example, what happens to existing DPOs who report into senior management, but act independently? Will a Senior Responsible Individual be able to delegate tasks to an external DPO? And not forgetting those organisations who need to keep a DPO to comply with EU GDPR, will they need an SRI as well?

4. Vexatious Data Subject Access Requests

Currently requests under the Right of Access (aka DSARs/SARs) can be refused, in part or in full, if there are judged to be ‘manifestly unfounded’ or ‘manifestly excessive’.

What’s proposed?

A concept of ‘vexatious or excessive’ will replace ‘manifestly unfounded or excessive’. Controllers will be permitted to take into account whether a request is intended to cause distress, is made in bad faith or is an abuse of power.

Our take on vexatious DSARs

Anecdotally we know of many cases where DSARs are being ‘weaponised’; not submitted to benefit the individual, but used primarily as a means to cause problems for an organisation. We welcome changes giving businesses increased grounds to decline inappropriate requests, where it’s clear the individual is not genuinely making the request because they want copy of their personal data. DPN DSAR Guide

5. Recognised Legitimate Interests

Currently organisations can rely on the lawful basis of legitimate interests when the processing is considered to be necessary and balanced against the interests, rights and freedoms of individuals. There’s a requirement to conduct a balancing test; a Legitimate Interests Assessment (LIA).

What’s proposed?

The concept of ‘recognised’ legitimate interests is planned, where there will be an exemption from the requirement to conduct a balancing test (LIA) in certain situations. These ‘recognised’ legitimate interests cover purposes such as national security, public security, defence, emergencies, preventing crime, safeguarding and democratic engagement.

The Bill also includes other examples where legitimate interests could be appropriate, but would require a balancing test. Examples include; direct marketing, intra-group transmission for admin purposes and security of network and information systems (although we are a little surprised the latter didn’t make it onto the list of recognised legitimate interests).

Our take on ‘recognised’ legitimate interests 

We welcome this change, as it makes sense to reduce the paperwork required for activities which are straight-forward or very clearly in the interests of both the organisation and individuals.

The fact direct marketing may carried out as a legitimate interest is not new. This is already in GDPR Recital 47; but this is reinforced by its presence in the Bill. This is a welcome clarification, but we would caution under the UK’s Privacy and Electronic Communications Regulations (PECR) there will still be certain circumstances where consent is required. GDPR and PECR

6. Extension of the ‘soft-opt-in’ exemption under PECR for charities & other not-for-profits

Currently under PECR it’s a requirement to have consent to send electronic marketing, for example email or text marketing messages, unless you can rely on and meet the requirements of the so-called ‘soft opt-in’ exemption. This exemption is only available where the data is used for commercial purposes. It’s use by charities is very limited to the context of a sale, for example selling goods in a charity shop, and can’t, for example, be used in the context of donations.

What’s proposed?

The soft opt-in exemption will be extended to non-commercial organisations, covering where the direct marketing is:

  • solely for the purpose of furthering charitable, political or other non-commercial objectives (i.e. including donations!)
  • where the contact details have been obtained during the course of a recipient expressing an interest or providing support, and
  • where the recipient is given a clear and simple means of objecting to direct marketing at the point their details were collected, and in every subsequent communication.

Our take on extending use of soft opt-in 

We welcome the move to allow charities to take advantage of an exemption which has been available for commercial purposes for years. Clearly, it will be for each charity to decide whether they stick with consent or change to soft opt-in. It can only be used going forward – it’s not an opportunity to re-contact those who didn’t give consent or opted-out in the past!

Charities will have to carefully think through the pros and cons of moving to soft opt-in and would be wise to check if their CRM systems could store multiple permission statuses for legacy data alongside new data gathered under soft opt-in. What could the marketing soft opt-in mean for charities? 

7. Cookies and similar technologies

Currently informed consent is required under PECR for all cookies and similar technologies deployed onto a user’s device. There is a limited exemption for ‘strictly necessary’ cookies.

What’s proposed?

There are provisions to expand the categories of cookies which don’t require consent, for example website analytics. There’s also a desire to reduce or eliminant the need for cookie pop-ups but it’s not yet clear how exactly this will be achieved.

Our take on cookies

Many businesses would welcome easing the existing requirements, although we anticipate few websites will, in reality, be able to compliantly get rid of cookie banners, unless radical changes are made! We look forward to clarification on exactly how the proposed changes might work in practice to benefit businesses and the public.

8. Increased fines under PECR

Currently, fines for violations under UK PECR are capped at £500,000.

What’s proposed?

Bringing the level of maximum fines in line with UK GDPR, meaning the ICO could issue fines of up to circa £17 million, or 4% of a business’s global turnover.

Our take on increased PECR fines

The ICO tends to take a proportionate approach to enforcement, and we envisage substantial fines would be reserved for spammers and rogue telemarketing businesses who flagrantly disregard the rules. If this goes some way to deterring bad operators and protecting the public, this could be a good thing.

Other DPDI Bill points worth noting

Scientific research

The Bill includes specific changes in relation to using personal data for scientific research, and what qualifies as scientific research. (This area could be an article in itself!)

International data transfers

The Bill doesn’t propose any significant changes to the international data transfer regime. It makes it clear mechanisms entered into before the Bill takes effect will continue to be valid. At last, some welcome news for all those grappling with the UK ITDA or the EU’s SCC with UK addendum! International Data Transfers Guide

UK Regulator

The Information Commissioner’s Office’s (ICO) name could be set to change to the Information Commission. It will act as an independent body, with plans for new reporting obligations to the Government. It’s intended there will be more government oversight of the Commission.
UK adequacy

In summary, the above just touches on key proposals, as said, it’s a very lengthy document! In our view the UK’s Data Protection and Digital Information Bill marks a significant but not giant step away from GDPR. There are good reasons why the Government is keen not to diverge too far. It does not want to risk the current European Commission ‘adequacy decision’ for the UK being overturned.

This adequacy decision allows for the free flow of personal data between the EU and UK, and there could be a signifiant negative impact for many businesses if UK adequacy is revoked.  We don’t know yet if the European Commission will view the Bill as a step too far.

What next?

It remains to be seen if the Bill can progress quickly enough to pass into law before the next election. If it fails to pass before a general election, it is not known if a new Government would be so keen to press on with the proposed reforms.

UK telemarketing rules

November 2023

How to avoid falling foul of the rules for marketing calls

Hardly a month goes by without the UK’s Information Commissioner’s Office (ICO) fining another company for breaking the telemarketing rules under the Privacy and Electronic Communications Regulations (PECR).

I’m sure all of us have been on the receiving end of a dodgy call. The favoured have you recently been involved in an accident? springs to mind.

Tackling nuisance calls is clearly a key priority for the Regulator, so how do bone fide businesses avoid being tarred with the same brush as the rogue operators?

6-point telemarketing guide

1. Service vs marketing calls

The definition of direct marketing covers any advertising or promotional material directed at particular individuals. Routine customer service calls don’t count as direct marketing.

But if you’re treating a call as a service call (and not applying the marketing rules under PECR) you need to be careful the script / call guide and what your call handlers say in practice doesn’t stray into the realms of trying to get customers to buy extra products, services or to upgrade or renew contracts.

A Trade Union was fined in 2021 for not screening numbers against the TPS. The Union didn’t believe its calls were direct marketing, but the ICO judged they were. Just because you believe you’re acting in good faith doesn’t mean you are. Marketing messages and service messages

2. Consent or Legitimate Interests?

Telephone numbers which can directly or indirectly identify an individual are personal data and fall under the scope of UK GDPR. For example, when using someone’s personal or work mobile, direct line business number or home landline you’ll need to comply with both UK GDPR and PECR.

You’ll need to decide whether to rely on consent or legitimate interests as your lawful basis under UK GDPR to make telemarketing calls to people. In brief:

  • Consent: make sure this meets the requirement to be a specific, informed, unambiguous indication of someone’s wishes made with a positive action (e.g. an opt-in). Keep records of consent (including, if relevant the script used) and make sure withdrawing consent is as easy as it is to give it. Consent – getting it right
  • Legitimate Interests: conduct a Legitimate Interests Assessment (LIA), keep a record of this assessment and be sure to provide people with a way to opt-out of future calls. Legitimate interests – is it legit? 

3. Live marketing calls to individuals

Below are the key rules to follow:

  • Don’t make marketing calls to anyone who’s told you they don’t want to hear from you. Keep a suppression file of all objections to telemarketing, and screen your campaigns against this internal ‘do not call list’.
  • Don’t make marketing calls to anyone registered with the Telephone Preference Service, unless you’ve collected consent to call them.
  • Say who’s calling – i.e. clearly state the name of your organisation.
  • Always display your number (or an alternative contact number).
  • Provide an address or freephone contact number if asked.
  • Make it easy to opt-out of further calls.

4. Remember sector specific rules

Stricter rules apply if you’re making calls about claims management or pension schemes. For claims management services you must have consent. For calls about pension schemes, you must have consent unless:

  • You are a trustee/manager of a pension scheme; or
  • A firm authorised by the Financial Conduct Authority; or
  • Your relationship with the individual meets strict criteria.

5. Automated calls

When using automated dialling systems which play a recorded message the rules are very strict. You must have:

  • Specific consent from individuals indicating they’re okay to receive automated calls; and
  • Calls must include your organisation’s name and contact address or freephone number; and
  • You must display your number (or alternative contact number).

In practice, these consent rules make genuine compliant automated calls very difficult.

6.  Marketing/sales calls to business numbers

The rules under the UK’s PECR are the same for calling businesses as they are for individuals.

  • You can call any business that has specifically consented to your calls. Or, and most commonly…
  • You can make live calls to any business number which is not registered with the TPS or the Corporate Telephone Preference Service (CTPS). But only if they haven’t objected to your calls and you’re not calling about claims management services.

The reason screening against both TPS and CTPS is necessary (if you don’t have consent), is sole traders and some partnerships may have registered with the TPS.

Applicable laws for telemarketing

PECR gives us the rules for telemarketing calls in the UK and the ICO has published telemarketing guidance. As well as complying with PECR you should comply with UK GDPR for your handling of personal data.

The rules differ in other countries, so check local laws if your telemarketing extends to calling people in other territories. Many countries have a ‘do not call’ register similar to the Telephone Preference Service.

There are also specific rules under PECR for email marketing messages, see UK email marketing rules.

3 steps to decide your data retention periods

November 2023

How to start tackling data retention

Both UK and EU data protection law requires organisations to not keep personal data any longer than necessary for the purpose(s)s the data is processed for. Sounds simple, doesn’t it?

In practice, it’s one the most challenging areas of the law to comply with. How do businesses decide on justifiable retention periods? How do they implement retention periods in practice? And, crucially, what are the risks if they get it wrong?

In our experience it’s not uncommon for many businesses to be holding onto unnecessary personal data. So when deciding how long personal data should be kept, it’s helpful to work through the following key steps.

1. Does the law tell us how long to retain certain records?

Sometimes there will be a legal or statutory requirement to retain personal data for certain purposes. This is the easy bit, as you can use this to set retention periods for certain categories of data.

For example, your business may be subject to laws relating to employment and finance which give specific periods when you process people’s data for these purposes.

There may also be a duty to preserve documents for disclosure in legal proceedings that may have started or may be started in future.

2. Are there industry standards, guidelines or known good practice?

In regulated sectors such as finance, health and manufacturing there may be agreed industry standards or agreed professional practices which recommend and/or can justify retention periods. Working to best practice and precedent makes things much easier.

3. What about… everything else?

Okay, you’ve established for certain dataset and what you use that data for, there’s no statutory requirements. Maybe you’ve also no industry standards that apply. What do you do now?

You’ll need to assess what’s necessary, proportionate and reasonable to retain. By its very nature, this is subjective; cases will often turn on their own merits. Ideally, you’ll want to be able to justify retention periods for different datasets.

Here are some of the questions you can ask to try and reach a defensible decision.

  • What are the business drivers for retention?
  • Does the product lifecycle have an effect on retention?
  • Does your approach to pricing have an effect on retention?
  • Can it be evidenced certain data is legitimately needed for a certain amount of time?
  • Do you need to keep personal data to handle queries or complaints?
  • How damaging would it be to the business to delete certain data?

To give an example, I know of a retailer which took the step of carrying out research into how often their customers purchased their products. Due to the sturdy nature of their products, the research clearly showed for many customers there was a gap of 3-4 years between purchases. This analysis was used as justification for retaining customer details for postal marketing longer than perhaps another company might.

What are the risks?

Businesses expose themselves to a number of risks if they keep personal data for longer than necessary, or indeed don’t keep it long enough.

Information security risks

The impact of a data breach could be significantly worse; with a larger volume of records and more people affected. Enforcement action could be more severe if it becomes clear personal data has been kept with no justifiable reason, i.e. a Regulator might deem that older data was unlawfully held. It could also increase the likelihood of complaints from individuals asking why their data was kept for so long.

I once received an email from a major UK brand informing me that my data had been involved in a data breach. My first thought was how on earth does this company still have information about me? I couldn’t remember when I’d last bought anything from them.

Legal risks

Where there’s a statutory requirement for personal data to be retained for a specific period, there’s clearly a risk if records aren’t kept for the statutory period.

Contractual risks

Certain personal data may need to be kept to meet contractual terms; for example to provide a service or warranties. Not keeping certain data long enough may lead to an inability to respond to complaints, litigation or regulatory enforcement.

Customer expectations

Customers expect organisations to be able to respond to their needs. For example, answering queries or responding to complaints. Data about them therefore needs to be kept long enough to meet customers’ reasonable expectations. However, once a reasonable period has elapsed a customer may not expect you to be continuing to hold their details.

All these risks could also result in reputational damage for an organisation which fails to meet its legal obligations, contractual obligations, or their customers’ expectations.

We’d recommend all businesses have a straightforward retention policy and keep a retention schedule. Admittedly these are only the first steps. Actually implementing and deleting data when it comes to the end of its retention period can be the biggest challenge. We’d suggest you review your data at least annually and cleanse.

Using the old adage ‘you can only eat an elephant one bite at a time’, we’d advise focusing on the biggest risk areas. What data represents the biggest risk if you keep it too long?

Our detailed Data Retention Guide is full of further tips, case studies and sample retention schedules.

Legitimate interests: is it legit?

November 2023

5-point legitimate interests checklist

“Legitimate interests is the most flexible lawful basis for processing,
but you cannot assume it will always be the most appropriate.”
UK Information Commissioner’s Office

Legitimate interests is used as a ‘go-to’ lawful basis for a host of business activities; analysis, administration, fraud prevention, network security, prospecting, marketing segmentation and personalisation… the list goes on.

But, just because we could do something with people’s personal data, doesn’t mean we should. The lack of another lawful basis as a ‘good fit’ doesn’t mean we should simply choose legitimate interests and decree it legit!

UK and EU GDPR require organisations to balance their own legitimate interests against the interests of the people whose data is used for a particular activity – and their rights and freedoms. Such business interests can be commercial ones, but they need to be balanced.

Legitimate interests checklist

Here’s a quick reminder of the elements to consider when relying on legitimate interests as your lawful basis.

1. Reasonable expectations

Are you handling people’s personal data in a way they would reasonably expect? If not do you have a very strong justification?

Judging reasonable expectations is objective. Legitimate interests is more likely to apply where you have a relevant and appropriate relationship with the people whose data you’re using. For example, they’re employees, clients or existing customers. Other factors which  play a part in this are how long ago you collected the data, where you sourced the data from and whether you’re using new technology or using data in a way people might not have expected.

2. Assessment

Have you conducted a Legitimate Interests Assessment (LIA)? This 3-part assessment should cover:

  • Identifying a legitimate interest
  • Demonstrating the processing is necessary for your organisation to achieve your objectives
  • Balancing your interests against individual interests, rights and freedoms

Where a case for relying on legitimate interests is clear cut, this needn’t be a complex assessment, but alarm bells should start ringing if what you’re planning to do…

  • isn’t really necessary
  • could be achieved in another less intrusive way
  • would be unexpected or unreasonable
  • may cause harm or distress to those whose data is involved
  • means people are unable to exercise their privacy rights

3. Transparency

Are you open about what you’re doing? Have you fulfilled people’s right to be informed about how their personal data’s being used?

It’s a legal requirement to tell people what processing activities you rely on legitimate interests for. This should be explained in a privacy notice clearly brought to people’s attention. Typically a privacy notice would be on forms where you collect personal data, on your website footer and in the footer of your emails.

4. Right to object

Can you provide people with a clear opportunity to object? If not, can you justify not doing so? For example, you probably wouldn’t give people the opportunity to object to necessary fraud or security checks.

5. Risk assessment?

Does what you want to do involve children’s data? Does it involve special category data (such as health data or biometrics)? Monitoring people on a large-scale? Involve innovative solutions like AI?

For any higher risk activities, it’s likely you’ll need to conduct a Data Protection Impact Assessment in addition to an LIA.

Legitimate interests and marketing

Direct marketing may be a legitimate interest, to paraphrase GDPR Recital 47, but organisations businesses still need to balance their commercial interests, and make sure their marketing doesn’t infringe on the rights and freedoms of individuals.

Crucially, legitimate interests can only be used if consent is not a requirement under eprivacy rules, such as the UK’s Privacy Electronic and Communications Regulations (PECR).

Clearly, it’s difficult to argue direct marketing is in people’s interests, so the ICO recommends focusing on the following factors when conducting a legitimate interest assessment:

  • Would people expect you to use their details for marketing?
  • Would unwanted marketing messages cause a nuisance?
  • Could the method and frequency of communications have a negative impact on more vulnerable people? In simple language, could you be accused of being overly pushy or aggressive?

Most importantly, everyone has an absolute right to object to direct marketing. The ICO says it’s more difficult to pass a balancing test if you do not give people a clear option to opt-out when you collect their details. Or, if the data wasn’t collected directly from them, in your first communication.

Ultimately to genuinely rely on legitimate interests for any purpose, we should be up front and honest about what we are doing, make sure it’s reasonable and give people the chance to say no. Unless we have a strong case for doing otherwise.

Workplace monitoring – justified or intrusive?

October 2023

Almost one in five people believe they’ve been monitored by an employer, and would be reluctant to take a new job if they knew they were going to be monitored. Research commissioned by the UK’s Information Commissioner’s Office (ICO) also shows 70% of the public believe it’s intrusive to be monitored in the workplace.

However, the research also shows workers generally understand employers might carry out checks on the quality and quantity of their work. Similarly, they appreciate the necessity of monitoring for health and safety reasons, or to meet other regulatory requirements.

There are plenty of reasons why employers might want to monitor staff; to check they’re working, to detect and prevent criminal activity, ensuring policy compliance, and for safety and security reasons.

With more people working from home and advances in technology, there are multiple options for employers seeking to monitor their workforces;

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

I’ve even heard of AI which sentiment checks emails. This scans language to detect content that might be discriminatory, bullying or aggressive. Personally, I find this terrifying. Imagine if this technology were available during the ‘Reds under the bed’ paranoia of 1950s America, or indeed 1930s Germany?

The fundamental question is this – just because you can monitor staff, should you?

The ICO has recently published guidance: Employment practices and data protection – monitoring workers. Emily Keaney, Deputy Commissioner – Regulatory Policy at the Information Commissioner’s Office, says; “While data protection law does not prevent monitoring, our guidance is clear that 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.”

Summary of workplace monitoring considerations

1. Is your workplace monitoring 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 choice. Often an imbalance of power means consent is not appropriate in an employee context.

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 monitoring is fair.

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 sensitive 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, is likely to lead to the processing of special category data.

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

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

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 is necessary. You should take steps to limit the amount of data collected and retained.

5. Is the information gathered accurate?

The ICO says organisations must take all reasonable steps to make sure the personal information gathered through monitoring workers is not incorrect or misleading 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, organisations need to be able to justify any retention periods they set.

7. Is the information kept securely?

You must have appropriate organisational and technical measures in place to protect personal information. 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. Processors will have their own security obligations under UK GDPR.

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. 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 overriding message from the ICO is carry out a Data Protection Impact Assessment if you’re considering monitoring people in the workplace. This should fully explore any impact on people’s rights and freedoms.

DSARs – what are people entitled to receive

October 2023

The Right of Access is a fundamental right under data protection law in the UK and European Union. Other jurisdictions have similar rights for their citizens. Requests are commonly referred to as a Data Subject Access Request – DSAR or SAR.

I often get asked questions about what’s in scope; what are organisations expected to provide in their response to a request? And what can they exclude?

The law tells us people have the right to request a copy of their personal data and other supplementary information from any organisation acting as a Controller.

What is meant by personal data?

Personal data is any information which could directly or indirectly identify the individual. This could include contact details, images, voice and video recordings, demographic information, profiles, order history, marketing preferences, HR records, opinions expressed about the individual, other personal identifiers such as employee number… the list goes on.

What if the individual already has the information?

I am also frequently asked; ‘do we need to provide information they already have or is obvious to them?’ The short answer is, yes. Based on UK case law, organisations can’t refuse to disclose information on the grounds personal data is already known to them. (Case: Lttihadieh v 5-11 Cheyne Gardens, 2017). However, it wouldn’t need to be included if the person has made it clear they don’t want this information.

What is out of scope with DSARs?

  • A DSAR isn’t a right to documentation. Just because someone’s name appears in an email, report or letter doesn’t mean they’re entitled to the whole document, if much of it doesn’t relate to them. It may be easier and relevant to provide full documents, but you would be justified in not doing so. You can extract the necessary information, or redact the irrelevant information.
  • If personal identifiers have been removed from a dataset, and it’s truly anonymised (i.e. the individual cannot be reidentified), it no longer falls under the scope of data protection law.
  • Personal data which is not part (or intended to be part) of a structured filing system is not in scope. For example handwritten notes in a personal notepad where there’s no intention to formally file these notes would not need to be included. However, if for example, employees write notes in ‘day books’ which are intended to be kept as a record of conversations, these would be in scope.

When can we refuse to comply with a request?

Sometimes it may seem obvious to you the individual has an ulterior motive for submitting a DSAR. In general, an individual’s motives shouldn’t affect their right to obtain a copy of their personal data, or the organisation’s duty to respond. Organisations can however refuse to comply with a request, either partially or fully, where they judge it to be manifestly unfounded or manifestly excessive.

A request might be considered manifestly unfounded if, for example, the individual…

  • has no real intention of exercising their right
  • offers to withdraw their request in return for some kind of benefit
  • explicitly states they want to cause disruption
  • makes unsubstantiated accusations or allegations
  • is targeting a specific employee due to a grudge
  • sends regular and targeted requests as part of a concerted campaign

A request might be considered manifestly excessive if it’s clearly or obviously unreasonable or would involve disproportionate effort.

If you rely on either of these grounds be sure to document your decision and the rationale behind it.

How much effort is required?

Organisations are expected to make all reasonable efforts to search, identify and retrieve all the personal data being requested. Regulators would expect systems to be well-designed and maintained so information can be efficiently located (including carrying out searches) and extracted.

The right of access is not new. It was around long before GDPR came into force in 2018, so organisations would be expected to be well prepared to handle requests.

What can be excluded or redacted?

Once all the information relating to the individual has been retrieved, the data collated may include information which doesn’t need to be disclosed. There may be justifiable grounds for excluding information or redacting documents, emails, video recordings and so on.

  • Information relating to others: the person making the request has a right to receive a copy of their personal data, they’re not entitled to personal data about other people. The UK Data Protection Act 2018 confirms you do not need to include certain information if it means disclosing information which identifies someone else, unless the other person has given their consent or it’s reasonable to disclose without the other person’s consent. Remember in many sitiations you may have a duty to protect the identify of others.
  • Confidential information: A duty of confidence may arise when another individual has genuinely shared ‘confidential’ information with the expectation that it remains confidential. Confidentiality cannot be automatically assumed and needs to be assessed on a case-by-case basis. Other information which may also be considered confidential includes, but is not limited to; trade secrets, information made confidential under another law, internal costs or commercial rates, intellectual property and information covered as part of a non-disclosure agreement
  • Other exemptions: The UK’s Data Protection Act 2018 provides a number of further exemptions which may apply depending on the nature of your business and the context of the specific request. These don’t always apply in the same way. Sometimes you might be obliged to rely on an exemption (i.e. it would break another law), other times it will be a choice. Commonly used exemptions include; legal professional privilege, crime and taxation, management information, research and statistics, confidential references and journalism.

The ICO says exemptions should not be routinely relied upon or applied in a blanket fashion. And remember, you may be required to demonstrate how an exemption applies and your rationale for relying on it. The full list of exemptions can be found in Schedule 2, Data Protection Act 2018. Examples of how they apply can be found in the ICO’s guidance.

What other information should be included in a response?

Along with a copy of their personal data, people are entitled to receive other supplementary information. Where this information is clearly available in a Privacy Notice, the UICO says it’s sufficient to provide a link to this in your DSAR response. This supplementary information is as follows:

  • Purpose: your purpose(s) for processing the person’s data.
  • Categories: the categories of personal data you’re processing.
  • Recipients: recipients or categories of recipient you have or will be disclose the personal data to (including recipients or categories of recipients in third countries or international organisations).
  • International data transfer safeguards: the safeguards you have provided where personal data has or will be transferred to a third country or international organisation.
  • Retention: your retention period for storing the personal data or, where this is not possible, the criteria for determining how long you will store it.
  • Other privacy rights: the individual’s right to request rectification, erasure or restriction or to object to processing.
  • Right to complain: the individual’s right to lodge a complaint with a Supervisory Authority, for example in the UK the Information Commissioner’s Office (ICO).
  • Data source: information about the source of the data, if you didn’t collect it directly from the individual.
  • Automated decisions: whether or not you use automated decision-making (including profiling) and information about the logic involved, as well as the significance and envisaged consequences of the processing for the individual;

DSARs can feel a bit of a minefield to the uninitiated and a little daunting if you don’t receive many or suddenly receive your first one. Our DSAR Guide provides more information about how to prepare and fulfil requests. The ICO also has detailed Right of Access Guidance.

International Data Transfers and UK-US Data Bridge

September 2023

What is it and what does it mean for UK businesses?

The UK-US Data Bridge was finalised on 21 September 2023 and goes live 12 October 2023.

The term ‘data bridge’ is the UK’s preferred terminology for ‘adequacy’ and it allows for the free flow of personal data from the UK to another country without the need for further safeguards.

The UK Government stresses data bridges are not reciprocal, they don’t permit the free flow of data from other countries to the UK. A data bridge is designed to ensure the level of protection for UK individual’s personal data under UK GDPR is maintained.

The UK-US Data Bridge is aimed at easing the burden on UK businesses, faced with complex international data transfer rules and requirements.

Background on data transfers to the United States

In the past, and when the UK was part of the EU, UK businesses could transfer personal data to US companies which had signed up to the EU-US Privacy Shield, without the need for other safeguards to be in place.

For more than a decade the Austrian privacy activist Max Schrems (and his business NOYB) has been challenging data transfers and highlighting concerns about US Government and agencies ability to access and intercept data transferred to the US.

This ultimately led to a 2020 European Court ruling, known as Schrems II which invalidated the EU-US Privacy Shield and raised concerns about another commonly used safeguard; Standard Contractual Clauses – SCCs.

(Just in case you’re wondering, there was also Schrems I – a ruling in 2015 which invalidated Safe Harbor, the predecessor to the Privacy Shield!)

Since the Schrems II ruling, EU businesses have been required to implement alternative safeguards when transferring personal data overseas, such as putting in place NEW Standard Contractual Clauses between the parties and conducting a Transfer Impact Assessment.

In the UK, we’ve seen the development of the UK’s own International Data Transfer Agreement (IDTA) and Transfer Risks Assessments, for UK based businesses. Oh, and let’s not forget there’s also the UK Addendum to EU SCCs.

Complex, isn’t it? Are you still with me?

EU-US Data Privacy Framework

The European Commission adopted an adequacy decision for transfers to the US which came into force on 11 July 2023. The EC confirmed the EU-US Data Privacy Framework, gives protection to personal data transferred which is comparable to that provided within the EU.

This decision provides a new lawful means for data transfers from exporters based in the EU to the U.S. In a similar way to the previous Privacy Shield, only US businesses regulated by the Federal Trade Commission or the US Department of Transportation are eligible, and need to self-certify compliance against a set of principles.

UK-US data bridge

Post-Brexit the UK is not covered by the EU-US Data Privacy Framework. But now, under the Data Bridge, the UK can benefit from similar arrangements. It’s important to note US companies must already be signed up to the EU-US Data Privacy Framework to be able to participate in the UK-US data bridge. Essentially the Data Bridge is an extension to the EU framework, which US suppliers would also need sign up to.

What steps can businesses take?

Businesses transferring personal data from the UK to the US can now check whether their arrangements with US businesses could benefit from the new Data Bridge. This would include checking;

1) whether US businesses are participating in the scheme, or intend to
2) the US businesses’ privacy policies
3) whether the caterogies of data being transferred are covered

Some types of US organisations are not eligible to participate in the Data Bridge, or Data Privacy Framework, and some categories of data may be excluded or require additional steps. For example special category data (such as health data, biometrics, political opinions) and criminal offence data require additional measures.

There’s further information available about the Data Privacy Framework here, and there’s also an ability to check if a US business is signed up using the participant search.

Legal challenges

As with it’s predecessors Safe Harbor and the Privacy Shield, the EU-US Data Privacy Framework is facing legal challenges. It’s argued it still doesn’t offer enough protection to EU citizens. It’s likely these challenges could take many months, may be even years to go through the courts. However, there’s the possibility the EC could invalidate the Data Privacy Framework at some point in the future. If this happens it’s not clear what the repercussions might be for the UK-US data bridge.

Businesses wanting to take a belt and braces approach, may therefore want to still rely on safeguard measures such as EU Standard Contractual Clauses, the UK International Data Transfer Agreement, and where necessary the UK Addendum.

See our International Data Transfer Guide for an overview of the rules and requirements.