Data Protection Impact Assessments for Agile projects

Simon BlanchardNovember 2023

How to assess risks when a project has multiple phases

Agile methodology is a project management framework comprising of several dynamic phases, known as ‘sprints’. Many organisations use Agile for software & technology development projects, which often involve the processing of personal data.

From a data protection perspective, Agile (and indeed other multi-stage projects) present some challenges. The full scope of data processing is often unclear at the start of a project. The team are focussed on sprint one, then sprint two, and so on. So how do you get Privacy by Design embedded into an Agile project?

Conducting a Data Protection Impact Assessment (DPIA) is a legal requirement under data protection law for certain projects. Even when a DPIA is not mandatory it’s a good idea to consider the privacy impacts of any new processing.

Looking at a project through a privacy lens at an early stage can act as a ‘warning light’, highlighting potential risks before they materialise and when measures can still be easily put in place to reduce the risks.

If your organisation uses Agile, it’s likely you’ll need to adapt your DPIA process to work for Agile projects. Understand the overall objectives and direction of travel to get a handle on how data use will evolve and what risks might be involved.

Working together to overcome challenges

It’s important all areas of the business collaborate to make sure projects can proceed at pace, without unnecessary delays. Compliance requirements must be built into Agile plans alongside other business requirements – just as ‘Privacy by Design’ intended.

Those with data protection responsibilities need project management teams to engage with them at an early stage, to explore the likely scope of processing and start to identify any potential privacy risks, while there’s still time to influence solution design.

This isn’t always easy. Given the fluid nature of Agile, which is its great strength, there is often very limited documentation available for review to aid Compliance assessments.

Privacy questions often can’t be answered at the start – there may be many unknowns. So its key to agree what types of data will be used , for what purposes and when more information will be available for the DPIA – crucially before designs are finalised. Timings for assessment need to be aligned to the appropriate sprints.

As many companies have found, embedding privacy awareness into the company culture is a big challenge and ensuring Data Protection by Design is a key consideration for tech teams at the outset is an on-going task.

Example: data warehouse

Organisations with legacy data systems might want to build a data warehouse / data lake to bring disparate data silos together under one roof, gain new insights and drive new activity. It’s important to assess any privacy impacts this new processing create.

Using Agile, new capabilities may be created over several development phases. So it’s important to conduct an initial assessment at the start, but stay close to as the project evolves and be ready to collaborate again, in line with sprint timings – before data is transferred or before new solutions are created.

Top tips for ‘Agile’ DPIAs

Here are my top tips for a fluid DPIA process;

1. DPIA training & guidance – make sure relevant teams, especially IT, Development and Procurement, all know what a DPIA is (in simple layman’s terms) and why it’s important. They need to recognise the benefits of including privacy in scope from the start (i.e. ‘by Design’).

2. Initial screening – develop a quick-fire set of questions for the business owner or project lead, which will give the key information you need, such as

the likely personal data being use
any special category data, children’s data or vulnerable people’s data
the purposes of processing
security measures… and so on

Once it has been identified there is personal data involved you can start assessing the potential risks, if any. As odd as this may sound, it is not uncommon for tech teams to be unsure at the beginning of a project if personal data (as defined under GDPR to include personal identifiers) will in fact be involved.

3. DPIA ‘Lite’ – if there are potential risks, develop a series of questions to evaluate compliance against the core data protection principles of the GDPR.

The Agile environment can prove challenging but also rewarding. Adopting a flexible DPIA process which works in harmony with Agile is a positive step forward for innovative companies, allowing your business to develop new solutions while protecting individuals from data protection risks, as well as protecting your business from any possible reputational damage.

UK telemarketing rules

Philippa DonnNovember 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

Philippa DonnNovember 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?

Philippa DonnNovember 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.

International Data Transfers and UK-US Data Bridge

Philippa DonnSeptember 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.

EU Representative and Swiss Representative for data protection

Philippa DonnSeptember 2023

Do you need to appoint a data protection representative?

The revised Swiss Federal Act on Data Protection (revFADP), which came into force on 1st September this year, includes a requirement to appoint a Swiss representative. This got me wondering how many UK companies might remain blissfully unaware of the requirement for many businesses to appoint an EU representative post Brexit.

What is an EU Representative?

If you’re a UK based business, you may still fall under the scope of EU GDPR if you offer goods and services to individuals in the European Economic Area or monitor the behaviour of individuals in the EEA. If you don’t have a branch, office or other establishment in an EU or EEA state, EU GDPR requires you to appoint a representative within the EEA.

This representative needs to be authorised in writing to act on your organisation’s behalf regarding your EU GDPR compliance. They are intended to be a point of contact for any EU regulator and EU citizens.

The representative can be an individual or a company and should be based in an EU or EEA state where some of the individuals whose personal data you handle are located. So, for example if you process data relating to German, Spanish and Italian customers, your EU rep should be based in one of these countries.

What constitutes ‘Offering Goods and Services’?

The European Data Protection Board (EDPB) guidelines on GDPR territorial scope provide helpful pointers on whether you would be considered as ‘offering goods and services’ to EU citizens.

Just because your website might be accessible to EU citizens isn’t enough to warrant the necessity of having an EU Representative. It needs to be ‘apparent or envisaged’ your products and services are being offered to individuals in one or more EU member states.

Let’s take a look at what that means. Does your organisation;

describe products and services in the language of an EU member state?
offer prices in Euros?
actively run marketing and advertising campaigns targeting an EU country audience?
mention dedicated contact details to be reached from an EU country?
use any top-level domain names, such as .de or .eu?
describe travel instructions from one or more EU member state to where your service is provided?
mention clients/customers based in one or more EU states?
offer to deliver goods to EU member states?

Answering ‘Yes’ to one or more of the above means it’s likely you fall under the requirements of GDPR Article 27 to appoint an EU Representative. You will not need to appoint a representative if; you are a public authority or your processing is only occasional, is of low risk to the data protection rights of individuals, and does not involve the large-scale use of special category or criminal offence data.

For example, here at the DPN we don’t need to appoint an EU Representative. Our website is clearly accessible to EU citizens, people can sign up for our newsletter or webinars from anywhere in the world, and we may do some consultancy work for an EU-based company. However, we’re a small business and our answers to all the above questions is NO.

But if for example you’re actively targeting your marketing or advertising campaigns at EU citizens, you are likely to fall under the requirement.

What does an EU Representative do?

Once you’ve established you meet the criteria, you need to know what an EU Representatives responsibilities are and find a company to p0rovide this service. They have the following core responsibilities:

co-operating with the EU supervisory authorities on your behalf
facilitating communications between EU citizens and your organisation
being accessible to individuals in all relevant member states (i.e. clearly mentioned in your privacy notice as the contact for EU citizens)
supporting you to manage your Record of Processing Activities (RoPA) in accordance with Article 30 of the GDPR.

A number of professional services have sprung up offering to be representatives, with Ireland proving a particularly popular location, not least because there are no language issues for UK companies. In selecting Ireland, you would need to be handling Irish citizen’s data. If for example you only process French and German citizens’ data you would need a Representative in one of these countries.

What about Swiss Representatives?

The revised Swiss Federal Act on Data Protection (revFADP) includes new and more stringent obligations on non-Swiss companies doing business in Switzerland. It includes a requirement to appoint a Swiss Representative. The Act broadens the territorial scope of the application of Swiss data protection law to make sure companies worldwide remain accountable for the protection of Swiss individuals’ personal data.

In practice, like the EU GDPR, organisations targeting goods or services to Swiss individuals or monitoring their behaviour will now have to comply with revFADP requirements. Organisations which process personal data of individuals in Switzerland and do not have a ‘corporate seat’ in Switzerland will need a Swiss Rep. For example if your activities

offering goods and/or services to individuals or monitor their behaviour, on a large scale,
are on a large scale, carried out regularly and pose a high risk to the data subject.

The role of Swiss Rep has involved from EU GDPR, they act as a local, accessible point of contact in Switzerland for individuals and for the FDPIC.

However, there are some distinct differences between revFADP and EU GDPR, such as the difference between a ‘corporate seat’ under revFADP and an ‘establishment’ under EU GDPR. Data processing on a large scale regularly and posing a high risk are part of the application criteria under revFADP, whereas under EU GDPR there’s an exemption to appointing a EU representative if your processing is not on a large scale, is not routine and is not high risk.

So, what’s the risk of not having a Representative?

This is not an area where we have seen much regulatory action. It seems likely a failure to appoint an EU or Swiss representative would only to come to light if an organisation suffered a personal data breach which impacted EU or Swiss individuals, or a particularly tricky complaint was received from an individual based in the EU or Switzerland.

However, if you squarely meet the criteria to appoint one, it would be wise to do so. There are plenty of companies who provide this service.

Data breaches – human or a catalogue of errors?

Philippa DonnAugust 2023

Why systems fail

The recent spate of serious data breaches, not least the awful case involving the Police Service of Northern Ireland (PSNI), left me wondering: who’s really to blame? We’re used to hearing about human error, but is it too easy to point the finger?

Is it really the fault of the person who pressed the send button? An old adage comes to mind, ‘success has a thousand fathers, failure is an orphan.’

Of course, people make mistakes. Training, technology and procedures can easily fail if ignored, either wilfully or otherwise. Yes, people are part of the equation. But that’s what it is. An equation. There are usually other factors at play.

In the PSNI case – one involving safety-critical data – I would argue there’s a strong argument that any system allowing such unredacted material to enter an FOIA environment in the first place is flawed?

Nobody is immune from human error. About nine years ago, on my second day in a new compliance role, I left my rucksack on the train. Doh! Luckily, there was no personal data relating to my new employer inside. I lost my workplace starter pack and had to cancel my debit card. I recall the sinking feeling as my new boss said, ‘well, that’s a bit embarrassing for someone in your job’. It was. But I knew it could have been so much worse.

Approximately 80% of data breaches are classified by the Information Commissioner’s Office as being caused by human error. Common mistakes include:

Email containing personal data sent to the wrong recipients
Forwarding attachments containing personal data in error
Failing to notice hidden tabs or lines in spreadsheets which contain personal data (this is one of the causes cited in the PSNI case)
Sensitive mail going to the wrong postal address (yes, a properly old-fashioned dead wood data breach!)

However, sometimes I hear about human error breaches and don’t think ‘how did someone accidently do that?’ Instead, I wonder…

Why didn’t anyone spot the inherent risk of having ALL those records in an unprotected spreadsheet in the first place?
Why wasn’t there a system in place to prevent people being able to forget to blind copy email recipients?
Is anyone reviewing responses to Data Subject Access Requests or FOI requests? What level of supervision / QA exists in that organisation?
Why is it acceptable for someone to take confidential papers out of their office?

I could go on.

Technical and Organisational Measures (TOMs)

Rather than human error, should we be blaming a lack of appropriate technical and organisational measures (TOMs) to protect personal data? A fundamental data protection requirement.

We all know robust procedures and security measures can mitigate the risk of human error. A simple example – I know employees who receive an alert if they’re about to send an attachment containing personal data without a password.

Alongside this, data protection training is a must, but it should never be a ‘tick box’ exercise. It shouldn’t be a case of annual online training module completed; no further action required! We need to make sure training is relevant and effective and delivers key learning points and messages. Training should be reinforced with regular awareness campaigns. Using mistakes (big or small) as case studies are a good way to keep people alert to the risks. This is another reason why post-event investigation is so important as a lesson-learning exercise.

Rather than being a liability, if we arm people with enough knowledge they can become our greatest asset in preventing data breaches.

Chatting with my husband about this, he mentioned a boss once asking him to provide some highly sensitive information on a spreadsheet. Despite the seniority and insistence of the individual, my husband refused. He offered an alternative solution, with protecting people’s data at heart. Armed with enough knowledge, he knew what he had been asked to do was foolhardy.

Lessons from previous breaches

It’s too early to call what precisely led to these recent breaches:

The Police Service of Northern Ireland releasing a spreadsheet containing the details of 10,000 police officers and other staff public in response to a Freedom of Information Request
Norfolk and Suffolk Police accidentally releasing details of victims and witnesses of crime
Scottish genealogy website revealing thousands of adopted children’s names.

However, we can learn from previous breaches and the findings of previous ICO investigations.

You may recall the case of Heathrow Airport’s lost unencrypted memory stick. Although ostensibly a case of human error, the ICO established the Airport failed not only ‘to ensure that the personal data held on its network was properly secured’, but also failed to provide sufficient training in relation to data protection and information security. The person blamed for the breach was unaware the memory stick should have been encrypted in the first place.

Then there was the Cabinet Office breach in which people’s home addresses we published publicly in the New Year’s Honours list. The actual person who published the list must’ve had a nightmare, when they realised what had happened. But the ICO findings revealed a new IT system was rushed in and set up incorrectly. The procedure given for people to follow was incorrect. A tight deadline meant short-cuts were taken. The Cabinet Office was found to have been complacent.

The lesson here? Data breaches aren’t always solely the fault of the person pressing the ‘send’ button. Too often, systems and procedures have already failed. Data protection is a mindset. A culture. Not an add-on. As the PSNI has sadly discovered, in the most awful of circumstances.

The impact breaches can have on employees, customers, victims of crime, patients and so on, can be devastating. Just the knowledge that their data is ‘out there’ can cause distress and worry.

Data protection law doesn’t spell out what businesses must do. To know where data protection risks lie, we need to know what personal data we have across the business and what it’s being used for. Risks need to be assessed and managed. And the measures put in place need to be proportionate to the risk.

What types of data protection risk are there?

Simon BlanchardAugust 2023

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

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

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

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

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

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

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

Data protection principles

1. Lawfulness, fairness and transparency

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

2. Purpose limitation

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

3. Minimisation

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

4. Accuracy

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

5. Storage limitation

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

6. Information Security

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

7. Accountability

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

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

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

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

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

Mistakes can happen

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

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

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

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

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What types of data protection risk are there?

Data protection principles

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7. Accountability

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