Data breaches – is your business prepared?

Simon BlanchardMarch 2021

The threat of data breaches affects all kinds of business, both large and small. So, how do you make sure you are prepared and have planned for the worst?

It may be easy to slip into thinking “Oh, it might never happen..” but you’ll kick yourself if it does. The fallout could be devastating and might have been avoidable.

The benefits of taking positive steps to recognise the risks, putting measures in place to prevent breaches occurring and adopting policies and plans which are ready to swing into action as soon as a data incident or breach occurs really can’t be underestimated.

Latest stats on data breaches are concerning

We regularly hear in the news of yet another company suffering a data breach. Let’s look at the scale of the problem.

Up to 88% of UK companies have suffered data breaches in last 12 months! Many EU countries have had similar experiences. (Source: Carbon Black highlighted by CSO Online)
37% of UK companies reported a data breach incident to the ICO in the past 12 months.
48% of UK organisations have been hit by ransomware in the last year, according to Sophos. Almost three quarters of these ransomware attacks (74%) resulted in the data being encrypted.

According to the UK Government’s report into cybersecurity breaches:

Only 31% of UK organizations have carried out a cyber risk assessment in the last 12 months.
Only 57% of large companies have cybersecurity incident response processes in place.

Performing under pressure

The stakes are high. With the clock ticking to meet notification timelines, it’s vital your business’ response is both rapid and effective.

Organisations are increasingly judged not by whether they are compromised, but how well they detect and respond to data incidents. Handling an incident badly could irrevocably harm a business’ reputation.

Being well prepared will help you to keep your brand’s reputation intact and reduce the chances of regulatory action.

Preparation is vital to prevent costly mistakes. So, what can we do to make sure we’re well prepared?

Know your main data breach risks

Carry out a threat assessment to understand where your key data risks lie. External threats like phishing and ransomware continue to be of great concern.

But interestingly, the ICO’s Data Security Incident Trends report (Q2 2020/21) shows that nearly three-quarters of reported breaches were classed as ‘non-cyber’ security incidents. For example:

Data emailed or posted to incorrect recipient
Verbal disclosure of personal data
Loss/theft of paperwork or data left in insecure location
Failure to redact personal information.

Many of these breaches might perhaps have been prevented by better training of employees, adopting good practices (which should be routine) and, quite simply, people taking greater care when handling personal data.

Seek Executive support

Take the time to make sure your Executive team are fully engaged in information security. This is time well spent and can significantly increase the success of your data breach response plans.

Your Executive team can support you to drive awareness and training, helping to ensure positive practices and behaviours cascade down and throughout the organisation.

Create a data incident playbook

A good playbook is vital to responding to a cyber incident. This combines the policy, key actions, procedures and communications associated with responding to an incident.

Your playbook should typically cover these topics:

Incident reporting and recognition
Appointing your Incident Lead and first responder team
Establishing the facts key rapidly. Agreeing tasks to be carried out within the first 24 hours. For example, review what you know so far, ensure evidence is documented, carry out forensics, confirm if any personal data has been breached, stop any further data loss, alert key people & partners, and so on.
Identifying, assessing and documenting any risks to individuals whose data may have been breached
Rapid and effective triage to mitigate these risks
Escalation and internal communications
When to notify the regulator and when/how to notify data subjects, if appropriate.
External communications and PR.

It’s wise to also consider carrying out a simulation exercise using likely scenarios, so you can see how well your plans work in practice.

Learnings after a breach

Prevention is clearly vital, but personal data breaches WILL happen, as the stats clearly show.

Whether it’s caused by a cyber-attack, the actions of an employee, a software vulnerability, loss of an unencrypted device, or indeed something else, a personal data breach has the potential to seriously damage your customers’ trust and your reputation.

Being prepared, means you can act swiftly, following a clear plan, with pre-defined actions and responsibilities. In the words of Lance Corporal Jones from Dad’s Army fame, you really can say “Don’t panic!”.

Data breach support – Our experience team can develop or review your incident procedures, run simulations and provide rapid support in the event of a suspected or actual personal data breach. Find out more

Consent: Getting it right!

Philippa DonnMarch 2021

Are you suffering from consent confusion? When must we rely on it? When is it not a good idea? And what must we do to make sure our consent is valid?

Here’s a short refresher to dispel the myths and a quick ‘consent checklist’ to make sure you are ticking all the right boxes!

For starters, one of the biggest myths surrounding GDPR (fuelled by news stories back in 2018) is that we need consent do almost anything with people’s personal data.

Simply not true.

Consent is one lawful basis, there are others

Consent is just one of six lawful basis. They are all equal, no one basis is better than another and you need to pick the right one for what you are doing.

Yes, sometimes consent is required by law for certain activities, but for many others a different lawful basis may be more appropriate.

But you do need to pick one. Data protection law across the EU and UK requires us have a lawful basis for processing personal data.

(By processing we mean doing anything with people’s personal information – from collecting, storing, sharing and even the action of deleting it).

GDPR raised the bar on what constitutes valid consent

GDPR defines consent and says it must be, “freely given, specific, informed and unambiguous” and must be given by a “clear affirmative action by the data subject”.

This means you need to clearly tell people what they are consenting to and they need to take an action to give their consent. And consent shouldn’t be bundled up with providing another service or with T&Cs.

Just to be clear, the rules for consent under UK GDPR as the same as for EU GDPR. (See UK data protection and ePrivacy law post-Brexit).

When is consent the right lawful basis?

Consent is most appropriate to use when you can offer people a clear choice and give them control over how you use their data. If you can’t do this, you should look to rely on another lawful basis.

When is consent legally required?

There are some circumstances when the law tells us we must gain consent. Let’s take a look…

1. Marketing

In specific situations you need consent to send marketing emails or SMS messages under the UK’s Privacy and Electronic Communications Regulations (PECR).

This is where things can get a bit nuanced. Consent is not always legally required for all marketing emails/SMS. There are choices you can make.

For example, there’s a specific exemption for existing customers (known as the ‘soft opt-in’) and more relaxed rules for business-to-business marketing. For more detail see Understanding email marketing rules.

There are also circumstances in which you will need consent for telemarketing calls. See the ICO’s Guide to PECR.

2. Cookies

You need consent to place cookies or other online tracking methods on people’s devices (unless those cookies are ‘strictly necessary’). Or to install apps or software on people’s devices.

The ICO has confirmed such consent needs to meet the UK GDPR standard, and that cookies used for analytics, performance or marketing are NOT strictly necessary. See the ICO’s cookie guidance.

3. Special category data

If you are intending to handle special category data, for example health data on individuals, you may need to seek explicit consent to make sure this is lawful. This is unless you can rely on another specific legal condition.

GDPR requires you to have a lawful basis for processing special category data PLUS a specific condition under Article 9.

Special category data is information relating to someone’s health, race, ethnicity, political opinions, religious beliefs, trade union membership, sex life, sexual orientation and covers genetic and biometric data.

A word of caution here, if you’re using special category data for direct marketing or profiling purposes, you’ll need explicit consent.

4. If no other lawful basis applies

As you must have a lawful basis for each processing activity you undertake, if no other lawful basis obviously applies, you will need to obtain consent. Here are a couple of examples:

If someone would not expect you to be sharing their data with another organisation, it’s likely you would need to collect their consent to do so.
If you are planning to use someone’s data for a completely different purpose, which you didn’t tell them about when you collected their data, you are highly likely to need to collect their consent unless another lawful basis applies (e.g. its needed to meet a legal obligation).

Consent checklist

You also need to consider other factors, such as if you are requesting consent for another organisation it must be separate and they should be named. Also consent doesn’t last for ever and should be refreshed (especially if anything changes).

If you offer online services which are likely to be accessed by children, you also need to consider whether you will need to seek parental consent and/or implement age verification measures. (Also see Children’s Code – deadline for conforming looms)

When is consent not a good option?

Consent will clearly not be the best approach if you will struggle to meet the requirements.

You should be careful about using consent where there’s likely to be an imbalance of power. In other words, where people might feel they have to give their consent.

This makes consent tricky if used by a business for purposes relating to their employees. Perhaps staff may feel a degree of pressure to give their consent, or feel they will be penalised in some way or treated differently if they refuse.

Saying this, sometimes there seems little option but to rely on an employee’s consent. I know a number of organisations using explicit consent for their diversity monitoring, which clearly entails special category data.

Consent isn’t easy

Collecting valid consent and meeting all the requirements may feel like a bit of a minefield. It does mean you need to take careful decisions. It’s worth double checking what risks may be lurking.

However, it is worth getting right, in the words of the ICO, “Genuine consent should put individuals in charge, build trust and engagement, and enhance your reputation.”

A final word of caution; be careful not to try and shoe-horn your activities into another lawful basis (such as legitimate interests), when consent really would be the most appropriate approach.

How is your privacy programme performing?

Simon BlanchardMarch 2021

You might regularly review your data policies, carry out staff training, conduct DPIAs when you need to… but how do you monitor the success of your privacy programme?

Let’s take a look at how to track your business’s privacy performance and gain confidence that data compliance is being managed successfully across the wider business.

The ICO is a good starting point – they have some useful tools.

This includes an Accountability Tracker tool which enables you to review and score business performance against each of ten key accountability areas.

In addition to highlighting gaps, the tracker includes its own dashboard (below), which is a useful was to see visually how your business is performing in these areas. For DPOs, this may help with your reports to the Board.

Example of a completed dashboard using the ICO’s Accountability Tracker

However, a word of caution. The level of detail required to complete the Accountability Tracker may prove too time-consuming for some. There’s a total of 330 questions to complete!

Don’t despair, as fortunately the ICO’s Online Self Assessment tool is much simpler and quicker to use. The results may be a little less forensic than the Tracker, but this method can still give you enough information for you score your business performance against each accountability.

It will help you to answer that vital question: ‘Where are we now?’. Using this approach could help you to prioritise your main focus areas and actions.

Bear in mind that certain accountabilities might need to be treated as higher priority than others in your business or sector.

Tracking wider organisational performance

Larger organisations may wish to monitor internal adherence to privacy laws across the key business functions (such as HR, Operations, Marketing and so on), or across multiple sites, countries or regions. This type of assurance activity is becoming increasingly popular, particularly annual reviews.

For example, how do you know the various functions that collect personal data are providing sufficient privacy information across all the data collection touchpoints?

A simple tracking template can help you achieve this. To the best of my knowledge the ICO doesn’t provide anything quite like this, and I would argue it needs to be tailored to the dynamics of your own business.

Getting assurance across your data processors

Many organisations outsource certain processing tasks to third party processors. It’s important to put due diligence in place to ensure your processors are adequately protecting the data you control.

Auditing your programme

Many business are keen to get independent assurance that their privacy programme is up to scratch and performing well. If you don’t have an internal audit team you might wish to bring in an external specialist.

What is responsible marketing?

Julia PorterJanuary 2021

What is responsible or ethical marketing?

What core values should you embrace and what type of projects can marketers apply these values to? Following some difficult moments, over the last year or two, trust in advertising remains stubbornly low.

Now more than ever we need to focus on open and transparent marketing campaigns to build back trust with customers.

Here are my six pillars of responsible marketing:

1. RESPECT – put simply, your customers sit at the heart of your campaigns. As one ICO speaker said to me at a DMA conference a few years ago “don’t piss people off”. That should be easy shouldn’t it? Ask yourself the question, how would you feel if you received the message/communication you’re planning to send out?

2. VALUE – create a credible value exchange. According to DMA research 88% of consumers believe the value exchange between consumers and corporates is skewed towards corporates. If customers receive relevant messages, they consider the value exchange is fair and will happily share their data.

3. TRUST – build trust in your campaigns. According to the Advertising Association, since 1992 consumer trust in advertising has halved to 25%. A project might involve marketing, product, compliance, risk, legal, sales, distribution teams and all of them need to put customers at the heart of their activities. In particular customers need to feel they can trust companies to do the right thing and, recently, this has been in short supply.

4. JARGON FREE – we must speak the same language. For marketers, the data privacy teams can sometimes talk gobblydegook. Article this and recital that, results in everyone else’s eyes glazing over in double quick time. And that’s just within the business. We all need to make a concerted effort to speak the customers’ language.

5. BE OPEN – openness and transparency are watchwords. Responsible brands employ responsible marketing techniques which revolve around providing a clear explanation of how data is used with clear pointers to help customers manage their data preferences. Explaining how data is going to be used and not feeling worried about how customers will react should be the norm.

6. RISK v REWARD – balance risk and reward. Only the business can really decide where this balance lies and that view needs to be shared across all teams. The compliance teams cannot own this, although they can help the business make those decisions. In the end data privacy is a business decision.

So, how can these principles translate into actions and projects? Here are just a few examples of responsible marketing projects:

Privacy by Design – what does this mean? If you’ve designed a new workflow or invested in some new technology, you need to consider your customer’s privacy needs from the start. You may have to evaluate the risks to understand the positive and negative impact of your decisions. You may ask your customers how they feel.
A brand led privacy communications campaign – have you asked your brand team to develop a clear and easy to understand privacy comms campaign? There are a few teams who have used video or graphics to bring their privacy policies to life, such as Channel 4, The Guardian, Amnesty International and the ICO themselves have materials which work hard to explain their policies clearly.
Data strategy –I’m not talking here about deciding what tech to buy but a clear strategy and decision about how to recruit and retain customers. Have you carried out a project in your organisation to figure out what data you really need to make a difference to sales? Have you worked through your database and minimised the volumes of data you need? Have you considered whether you need all the cookie data that is collected? A strategy based on what will make your messages relevant to your customers and prospects will almost certainly use far less data than is being collected at the moment.
Making data privacy part of your business culture and values – behaving ethically and treating customers well will reap huge benefits in terms of enhanced trust and increased sales.

Should DPOs take responsibility for risk?

Simon BlanchardDecember 2020

A Data Protection Officer’s job is to inform their organisation about their data protection obligations and advise on risks relating their processing of personal data. But should a DPO ever take on the responsibility for a business risk?

Many organisations apply a ‘three lines of defence’ model for risk management. This is where the business functions that process data ‘own’ the risk, specialists like the DPO & CISO advise the business owners and an internal or external audit function provides independent assurance. Here’s a simplified diagram.

In this model the second and third lines of defence should never become risk owners. The DPO (and CISO where appropriate) provide specialist advice to the risk owners, enabling them to understand their obligations and risk profile fully so they can make well informed decisions about how best to treat any privacy risks.

For example, risk owners, acting under advice from the DPO, must ensure appropriate technical and organisational measures are in place to protect the data.

However, in the real world, this model can come under strain. Sometimes those who should take responsibility as risk owners can have slippery shoulders and refuse to take on the risks. For certain kinds of processing (such as where data is used for analytics, insight & modelling) the processing risks may be shared across multiple business functions.

Other processing doesn’t seem to sit conveniently with anyone. So, things can fall through the cracks and nobody takes responsibility for making firm decisions. On these occasions a DPO might come under pressure to take risk ownership themselves. But should they push back?

This question was raised during our recent Privacy Question Time. We asked our 170-strong audience for their thoughts before our panel gave their views.

Do you think the DPO should take responsibility for privacy risks?

The results were pretty conclusive!

Chris Whitewood, Privacy & Data Protection Officer at Direct Line Group, agrees the risk shouldn’t sit with him:

“I think as a DPO advice and guidance to the business is crucial. It’s our job to impart knowledge and challenge how the business processes data. But you have to come back to accountability and at the end of the day it’s the business that uses the data, collects the data and runs with it.

Our job as DPOs is to set the parameters for how they do this in a compliant way, coupled with independent challenge and oversight. The responsibility for managing risk sits with them. We’ve tried to push ownership back to the business areas, so they understand the risks they are running and can demonstrate the controls they have around those risks.”

Conflict of interests?

GDPR tells us, “data protection officers, whether or not they are an employee of the controller, should be in a position to perform their duties and tasks in an independent manner” (Recital 97).

The ICO, in line with European (EDPB) guidelines, says:

“…the DPO cannot hold a position within your organisation that leads him or her to determine the purposes and the means of the processing of personal data. At the same time, the DPO shouldn’t be expected to manage competing objectives that could result in data protection taking a secondary role to business interests.”

So, if the DPO took ownership of an area of risk, and played a part in deciding what measures and controls should be put in place, could they may be considered to be ‘determining the means of the processing’? If so, this could perhaps lead to a conflict of interest when their role requires them to act independently.

It’s easy for the legislators and regulators to put this in black and white, but we all know in the real word these matters are rarely as clear cut. Often it isn’t straightforward, as Debbie Evans, Global Group Data Protection Officer for Rentokil-Initial explains:

“I maintain a risk register, and where I can, I ensure an appropriate business owner is identified and accountable for the appropriate risk. However, I’ve felt compelled to take accountability for certain risks where there is a lack of a clear business owner.

Whilst this is not ideal, I feel duty bound to take responsibility but ultimately, I want to make somebody on the operational side of the business accountable for the risk.“

So, in theory we agree DPOs shouldn’t own business risks. But in the real-world this is not clear cut and may not be always possible.

The data breach that cost Marriott £18.4 million – what went wrong?

Philippa DonnNovember 2020

The humongous penalty train keeps rolling – after the £20 million fine for British Airways for GDPR violations, the Information Commissioner’s Office (ICO) has slapped an £18.4 million fine on Marriott International Inc.

In its ruling, the ICO says Marriott made multiple failures in its technical and organisational measures for protecting personal data. The case also highlights how when a business acquires another company it becomes accountable for past as well as present compliance.

An estimated (and staggering) 339 million guest records were affected worldwide, following the 2014 cyber-attack on Starwood Hotels and Resorts Worldwide Inc. It’s estimated 7 million of those affected were UK citizens.

Starwood was acquired by Marriott in 2016, and the attack went undetected until September 2018. The ICO has stressed its ruling relates to infringements after GDPR came into force in May 2018.

As the data breach was notified before Brexit, the ICO was able to act as lead supervisory authority, charged with investigating the breach on behalf of all affected EU citizens.

The penalty was signed-off by other EU data protection authorities, under GDPR’s one-stop shop mechanism for cross-border cases. Moving forward post-Brexit, the UK will no longer be part of the one-stop mechanism.

Why was the fine reduced?

In its original ‘Notice of Intention’ to fine in July 2019, the ICO set the figure at an eye-watering £99 million. The Regulator says this amount was reduced taking several factors into consideration;

Marriott’s representations to the ICO
The action the hotel group took to mitigate the breach’s impact
The economic impact of the COVID-19 pandemic

There are some rumblings the pandemic may be proving a handy ‘excuse’ for the ICO; COVID-19 was also cited in the reasons for reducing the British Airways fine.

This begs the question – did the ICO significantly over-estimate in their initial notices, or are they being kind-spirited due to the current financial and operating climate?

What went wrong for Marriott?

In 2014 unknown hacker(s) installed code onto a device in the Starwood systems. This gave them the ability to edit the contents of the device remotely.
This was exploited to install malware, giving the attacker privileged access. The attacker had unrestricted access to connected devices across the Starwood network. The attacker then continued to install further tools, enhancing the malicious access.
In 2016 Marriott acquired Starwood. The ICO’s ruling reveals Marriott was only able to carry out limited due diligence of Starwood’s data processing systems and databases prior to acquisition (those with acquisition experience will know how challenging robust due diligence can be).
In September 2018, the attacker made a move which finally tripped an alert. They exported a table which contained card details on which a security trigger had been set. Such alerts were not in place to automatically trigger on other data sets accessed – for example passport details.
Marriott notified the ICO and affected individuals in November 2018 after becoming ‘aware’ of the nature of the breach.
The data exfiltrated by the hacker(s) affected data included names, email addresses, phone numbers, passport numbers, arrival and departure information, VIP status and loyalty program information.

72-hour data breach notification rules

You may note there was a significant time delay between the trigger being fired in September on Starwood’s systems and Marriott’s notification to the ICO in November.

As part of its representations Marriott challenged the ICO’s initial finding that the 72-hour breach notification rules had been infringed (GDPR Article 33).

This comes down to when a controller can be judged to be ‘aware’ a personal data breach has occurred.

In its final ruling ICO found Marriott was incorrect to claim that;

“The GDPR requires a data controller to be reasonably certain that a personal data breach has occurred before notifying the Commissioner. Rather, a data controller must be able to reasonably conclude that it is likely a personal data breach has occurred to trigger the notification requirement.”

However, in ‘this particular case’ taking into account Marriott’s representations the Commissioner decided to make a finding that Marriott had NOT breached the notification requirements.

Key ICO findings

At a top-level there are four key findings in the ICO’s ruling. It’s worth remembering the ruling applies to the period post 25 May 2018, despite historic pre-2018 concerns.

Insufficient monitoring of privileged accounts
There was a failure to put in place ongoing network and user activity monitoring. The ICO says Marriott should’ve been aware of the need to have multiple layers of security.
Insufficient monitoring of databases
Failure to implement server hardening – the vulnerability of the server could’ve been reduced, for example, through whitelisting.
Lack of encryption – for example, passport details were not encrypted.

If you are interested in the full details, you can read the full ICO Marriott ruling.

The ICO references the National Cyber Security Guidance: 10 steps for Cyber Security, which is a useful resource for any business wanting to make sure their cyber sec is robust.

There’s little doubt the attack Marriott suffered was sophisticated, but the ICO says their investigation revealed how the hotel group failed to put in place appropriate security measures to address such attacks and other identifiable risks to their systems.

Impact on individuals

In its ruling the ICO ruling took into account the nature of the personal data breached.

Despite assurances given and mitigating steps taken by Marriott, the Regulator concluded it was likely some of the affected individuals will, depending on their circumstances, have suffered anxiety and distress. The Ruling also specifically calls out the duration of the breach, lasting as it did a period of 4 years.

What can we learn from this data breach?

The number of people affected, the nature of the data maliciously accessed, the potential distress caused and the size and profile of Marriott… all of these will have played a part in the £18.4 million fine. This is a scalable problem – but for every business cyber security needs to be a priority.

When acquiring a company, due diligence is crucial prior and post-acquisition, but this must be an ongoing process, not a one-off activity.

The fine’s just the tip of the financial iceberg. Marriott will have spent a significant amount on rectifying the breach and mitigating the impact for affected individuals, before we even contemplate the cost of complex and protracted legal representation.

Alongside this hefty financial hit, the hotel group also faces a class action lawsuit from customers who are seeking compensation. If successful, this could prove even more costly.

It’s worth noting the fine would’ve been higher if Marriott hadn’t proactively sent email communications to affected customers, created a data breach website and set up a call centre to provide a data breach hotline.

It’s often said, because it’s true, you can’t underestimate how crucial it is to be prepared for a data breach. Making sure you have a robust (and tested) data incident plan, being able to effectively and quickly assess the risk posed, plus having a pre-prepared communications strategy and measures to support those affected.

Commenting on the fine, the UK’s information commissioner Elizabeth Denham said;

“Millions of people’s data was affected by Marriott’s failure; thousands contacted a helpline and others may have had to take action to protect their personal data because the company they trusted it with had not. When a business fails to look after customers’ data, the impact is not just a possible fine, what matters most is the public whose data they had a duty to protect.”

Marriott says they remain committed to the privacy and security of their guests and is continuing to make significant investments in security measures for its systems. Marriott has not admitted liability for the breach, but has indicated it won’t appeal.

Need extra support and advice? We can support with your data incident planning and procedures. Get in touch – we can also provide rapid support should you suffer a data incident which requires effective and quick investigation.

British Airways data breach – what can we learn?

Simon BlanchardOctober 2020

We’ve finally heard the UK Information Commissioner’s Office (ICO) has fined British Airways £20 million for failing to protect personal and credit card data in their 2018 data breach. A breach which affected more than 400,000 BA customers and staff.

A final decision on this has been expected for some time, we just didn’t know what the figure would be until now. The amount is a fraction of the £183 million initially announced in the ICO’s notice of intention to fine. After considering BA’s representations and factoring in the economic impacts of COVID-19 it has been significantly reduced. But it’s still an eye-watering sum, in fact, the largest fine issued by the ICO.

What are the key lessons other businesses can learn from BA’s painful experience?

Information security must be taken seriously at Board level

Modern businesses rely on data more and more to provide quality services for customers and to create competitive advantage. However, the risks to personal data are numerous, varied and ever-changing. A data breach can massively harm a business’s reputation with its customers, staff and with the world at large.

It’s often said that with power comes responsibility, so businesses need to recognise their roles as guardian and protector of the personal data of their customers and employees. We have to deliver on the promises we make, for example, in our privacy notices. Any steps your business can take to properly protect personal data and demonstrate to staff and the public how seriously you take data protection will help protect them from harm and also may help you to stand out from competitors in these tough times.

Boards need to show leadership by insisting on a strong and vigilant information security regime. I guess that means they need to be prepared to fund it too! It also means asking tough questions about the levels of data protection in place across the organisation.

Rachel Aldighieri, MD of the Data & Marketing Association (DMA), believes this is a wake up call;

“Brexit and coronavirus have put businesses under immense financial strain. A fine of this magnitude will certainly get the attention of Board members of organisations across the UK. They will certainly not want to risk receiving similar disciplinary action from the ICO. This is the largest fine issued by the ICO to date under the new GDPR laws, highlighting the importance all businesses should place on the security of customers’ data and the need to build in safeguards to protect it.

“Data is a fundamental part of the digital economy, so maintaining its security must be a business imperative. Trust in how brands collect, store and use data is essential to the relationship between businesses and their customers. This message should resonate with businesses now more than ever.”

Security measures must not only be ‘adequate’ but also checked and verified

The ICO said there were numerous measures BA could have used to mitigate or prevent the risk of an attacker accessing their network.

Martin Turner, Managing Director at cybersecurity specialists Full Frame Technology, believes BA missed the basics:

“As with so many serious data breaches, this one was caused by a failure to adopt the most basic security measures, including limiting access to applications, rigorous cybersecurity testing, and protecting accounts with multi-factor authentication.

Login credentials for a domain administrator account were stored in plain text. Software code wasn’t reviewed effectively. These are issues that a cybersecurity audit should have revealed, and BA has yet to explain why this didn’t happen.”

The ICO has (finally) shown us it has teeth!

Could this be a turning point? It’s been a long time coming and many expected it to happen much sooner. The ICO have finally issued a BIG fine more in keeping with the expectations most of us had when GDPR came into force.

Nevertheless, you might feel the ICO has shown a measure of pragmatism, reducing the fine down so much from the original £183m. But it’s not great timing for any business to suffer a body blow like this.

It will be interesting to see what figure the ICO finally decide to fine Marriott International for their Starwood data breach, which first came to our attention around the same time as BA. The ICO’s original ‘intention to fine’ for Marriott was £99 million.

Should we think again about data breach insurance?

You might be thinking afresh about breach insurance. We’d suggest you shop around and pay attention to the fine print, as data breach insurance policies can vary more than you might imagine.

Don’t just look at the price as no two policies are the same and there is little consistency in the way policies are worded. The levels of cover and features on offer can vary significantly. Keep an eye out for exclusions!

One key differentiator you may wish to delve into is the level of support your insurer will provide in the event of a breach or a cyber attack. Do they have a team of specialists in place who will advise and help you to triage a live situation? This is one area where you might get just what you pay for.

This fine was long anticipated and the pandemic has definitely played its part in reducing the final amount. The travel sector has been badly impacted by COVID and £20 million will hit BA hard. BA may decide to appeal against it. It goes to show how important it is to have robust data protection and security measures in place.

Data Protection by Design: Part 3 – Data Protection Impact Assessments

Philippa DonnSeptember 2020

Getting your DPIA process on track

Deciding when to carry out a Data Protection Impact Assessment (DPIA), and understanding how to conduct one effectively, is a challenging area.

I’ve come across cases where DPIAs are not being conducted when necessary, or left incomplete. Less frequently, DPIAs are over-used, creating an unnecessary burden on key teams.

DPIAs sit at the heart of Data Protection by Design, and this is part 3 of our series, following on from:

Part 1: Data Protection by Design – The Basics

Part 2 – How to approach Data Protection by Design

Just to be clear – we may be hearing the term DPIA more frequently, but it’s not a new idea – what changed under GDPR is they were made mandatory in certain circumstances. And even if not mandatory they can be a very useful tool in your data protection toolbox.

So how do you make sure your DPIA process is on track? I’ve taken a look at the key stages you should have in place, and how to get people on-board and improve their understanding.

But first things first.

What is a Data Protection Impact Assessment?

Just to recap, a DPIA is a management tool which helps you:

Identify privacy risks
Assess these risks
Adopt measures to minimise or eliminate risks

It’s a way for you to analyse your processing activities and consider any risks they might pose. It focuses on identifying any risks to people’s rights and freedoms, and considers the principles laid down in data protection law.

The key is to start the assessment process early so you can make sure any problems are found (and hopefully fixed) as soon as possible in any project – be this implementing a new system, designing a new app or creating new processes.

When is a DPIA mandatory?

When considering new systems, technologies or processes a DPIA should be conducted if these might result in a high risk to the rights and freedoms of individuals. A DPIA may also be conducted retrospectively if you believe there are inherent risks.

It’s mandatory, under the GDPR to conduct a DPIA in all of the following scenarios:

A systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person
processing on a large scale of special categories of data or of personal data relating to criminal convictions and offences
a systematic monitoring of a publicly accessible area on a large scale

Each EU regulatory authority has published their own list of other scenarios in which a DPIA would be mandatory. You can find the UK Innformation Commissioner’s Office’s in its DPIA Guidance. This includes;

use innovative technology (note the criteria from the European guidelines)
process biometric data or genetic data (note the criteria from the European guidelines)
match data or combine datasets from different sources
collect personal data from a source other than the individual without providing them with a privacy notice (‘invisible processing’) (note the criteria from the European guidelines)
track individuals’ location or behaviour (note the criteria from the European guidelines)
profile children or target marketing or online services at them – it’s also worth checking the new ‘Children’s Code’ aimed at protecting children online

When a DPIA is not mandatory… but a good idea

The ICO says it’s “good practice to do a DPIA for any other major project which requires the processing of personal data.” Here are some examples of where it might be advisable to conduct a DPIA, if your processing;

would prevent or restrict individuals from exercising their rights
means disclosing personal data to other organisations
is for a new purpose (i.e. not the purpose the data was originally collected for)
will lead to transfer of personal data outside the European Economic Area (EEA)
involves contacting individuals in a manner which could be deemed intrusive.

What the ICO expects you to do

The ICO DPIA guidance has a handy checklist of areas to focus on:

provide training so staff understand the need to consider a DPIA at the early stages of any plan involving personal data
make sure existing policies, processes and procedures include references to DPIA requirements
understand the types of processing that require a DPIA, and use the screening checklist to identify the need for a DPIA, where necessary
create and document a DPIA process
provide training for relevant staff on how to carry out a DPIA

How to build a robust DPIA process

So how do you go about fulfilling the ICO’s expectations above? Here are some steps to take.

A. Getting Board / Senior Management buy-in

Growing awareness and buy-in from across the organisation is crucial. It can be helpful to highlight why DPIAs are a good thing, for example;

- they’re a warning system – they alert compliance teams, and the business as a whole, of risks before they occur. Prevention is always better than cure
- by identifying risks before they’ve an adverse impact, DPIAs can protect you against potential damage to your brand reputation, e.g. from complaints or enforcement action
- they help management make informed decisions about how your processing will affect the privacy of individuals
- they show you take data protection seriously and provide evidence, should you need it, of your compliance

Training is also important, I’ll come on to this in a bit, but first you need to make sure your process is fit for purpose….

B. Creating a screening questionnaire

Create a quick set of questions for business owners or project leads to use, which help to identify if a DPIA is required or not.
These can ask about the type of personal data being used, whether it entails any special category data or children’s data, what the aim of the project is and so on.

The answers can be assessed to judge whether a more detailed assessment is really required or not. (It can also show where more training might be needed, if people struggle to answer the questions).

C. The DPIA itself

You need to develop a robust process for conducting a DPIA. The ICO has a template you can use, but it’s good idea to adapt this to suit your business. Make sure it’s easy to understand and not full of data protection jargon.

These are the core aspects it needs to cover:

- describe the processing you are planning to do – it’s nature, scope, context and purposes
- assess its necessity and proportionality
- identify and asses any risks
- identify solutions and integrate into a plan
- sign off and record outcomes
- implement risk control plans
- and finally, keep your DPIA under review

Let’s look at these seven key stages in a little more depth…

1. Describe your processing

These are some of the type of questions you’d want answers to (this is not an exhaustive list):

- how is personal data being collected/used/stored and how long it is retained for?
- what are the source(s) of the personal data?
- what is the relationship with individuals whose data will be processed?
- what types of personal data does it involve, does this include special category data, children’s data or other vulnerable groups?
- what is the scale of the activity – how many individuals will be affected?
- is the processing within individuals’ reasonable expectations?
- will data be transferred to a third party and is this third party based outside the EEA?
- what risks have already been identified?
- what are the objectives? Why is it important to the business and / or beneficial for individuals?

2. Necessity and proportionality

Consider the following questions (again, this is not an exhaustive list):

- what is the most appropriate lawful basis for processing?
- is there another way to achieve the same outcome?
- have you ensured that the minimum amount of personal data is used to achieve your objectives (i.e. data minimisation)?
- how can you ensure data quality and integrity is maintained?
- how will you inform individuals about any new processing?
- how will individuals’ rights be upheld?
- are any processors used and if so how will you ensure their compliance?
- how will international transfers be protected, what safeguard mechanisms will be used?
- who will have access to personal data, does this need to be restricted?
- where will data be stored and how will it be kept secure?
- how long will data be retained and how will data be destroyed when no longer required?
- have the relevant staff received appropriate data protection training?

3. Identify and assess the risks

Identify any privacy issues with the project and associated risks. These may be risks to the individuals whose data is being processed, compliance or commercial risks.

Is there potential for harm, whether this be physical, material or non-material? A DPIA should ideally benchmark the level of risk using a risk matrix which considers both the likelihood and the severity of any impact on individuals.

You don’t have to eliminate all risks, but they should be documented, and any residual risks need to be understood and, if appropriate, accepted by the business.

If you identify a high risk that you cannot mitigate, you must consult the ICO before starting the processing.

4. Identify solutions and integrate into a plan

Develop solutions which will eliminate or minimise privacy risks and then consider how these solutions impact on the project.

It can be helpful to use the established ‘four strategies for risk management’ (the 4Ts), i.e.

- Treat the risk, i.e. adopt measures to minimise or eliminate risk
- Transfer the risk, e.g. outsource the processing
- Tolerate, e.g. accept risk if its within the organisations accepted level of risk
- Terminate it, i.e. stop that specific processing or change the process in such a way that the risk no longer exists

5. Sign off and record outcomes

Someone must sign-off that the DPIA is complete and be accountable for any residual risks. It’s a good idea to log residual risks in your Risk Register.

6. Implement risk control plans

7. And finally, keep your DPIA under review

There’s also lots of useful content on this in the ICO’s DPIA Guidance.

D. Awareness and Training

Once you have your questionnaire and DPIA process ready to go, it’s time to make sure people know about it! If people aren’t aware they’ll be busy doing fabulously innovative things, not considering the potential data protection issues and impact on people’s privacy.

Making sure your teams know what a DPIA is, in simple layman’s terms, is an important step – building an understanding about why it’s important and the benefits to the business as a whole.

Creating short, easy to understand, guidelines and raising awareness via other means helps reinforce the message that DPIAs are a good thing and people need to think data protection in their day to day work.

It’s also important to develop people’s skills. After all the DPO (or team/person responsible for data protection) can’t do this single-handed. You need key people to know;

- what a DPIA entails
- how to answer the questions
- what are the types of risks to look out for
  and
- what type of solutions will mitigate any identified risks

Holding workshops with relevant staff to discuss how you conduct a DPIA, and / or perhaps run through an example, can help improve people’s skills. My key tip would be to try and not over-complicate things and to keep it straightforward.

In summary, whether you are required by law or not to complete a DPIA they are a useful way to make sure data protection is considered from the outset, with no nasty surprises just before your project launches!

“But it’s essential that we go live on Friday!” If I had a penny for every time I’ve heard this one. If only they’d known, or thought of, speaking to the people responsible for data protection.

Often a DPIA won’t required, but there’ll be times when it’s mandatory or just a very good idea.

Data Protection team over-stretched? We can review your existing DPIA process or help you to develop one. We can also do remote DPIA workshops for key members of your teams – Get in touch

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What the ICO expects you to do

How to build a robust DPIA process

A. Getting Board / Senior Management buy-in

B. Creating a screening questionnaire

C. The DPIA itself

1. Describe your processing

2. Necessity and proportionality

3. Identify and assess the risks

4. Identify solutions and integrate into a plan

5. Sign off and record outcomes

6. Implement risk control plans

7. And finally, keep your DPIA under review

D. Awareness and Training

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