Why is it important for your organisation to comply with the Data protection Act?
The Data Protection Act 1998 ("DPA"), lays down eight data protection principles that any organisation processing data of individuals must comply with.
What does the DPA cover?
The DPA came into force on 1 March 2000. The DPA implemented the European Union ("EU") Directive on data protection into UK law introducing radical changes to the way in which personal data regarding identifiable living individuals can be used. The constant need for businesses to process personal data means that the DPA impacts upon most organisations, irrespective of size. Furthermore, the public's growing awareness of their right to privacy means that data protection will remain an important issue.
The DPA makes a distinction between personal data and personal sensitive data. Personal data includes personal data relating to employees, customers, business contacts and suppliers. Sensitive data covers an individual's ethnic origin, medical conditions, sexual orientation and eligibility to work in the UK . The data protection principles set out the standards which an organisation must meet when processing personal data. These principles apply to the processing of all personal data, whether those data are processed automatically or stored in structured manual files.
What is data?
Data means information which is processed by computer or other automatic equipment, including word processors, databases and spreadsheet files, or information which is recorded on paper with the intention of being processed later by computer; or information which is recorded as part of a manual filing system, where the files are structured according to the names of individuals or other characteristics, such as payroll number, and where the files have sufficient internal structure so that specific information about a particular individual can be found easily.
What are the eight data protection principles?
The eight data protection principles are as follows:
Personal data must be processed fairly and lawfully
Personal data must be obtained only for specified and lawful purposes and must not be processed further in any manner incompatible with those purposes
Personal data must be adequate, relevant and not excessive in relation to the purposes for which they were collected
Personal data must be accurate and, where necessary, kept up to date
Personal data must not be kept longer than is necessary for the purposes for which they were collected
Personal data must be processed in accordance with the rights of data subjects
Personal data must be kept secure against unauthorised or unlawful processing and against accidental loss, destruction or damage
Personal data must not be transferred to countries outside the European
Economic Area unless the country of destination provides an adequate level of data protection for those data.
What data comprises personal data?
Personal data relates to data of living individuals who can be identified from those data, or from those data and other information which is in the possession of the data controller or which is likely to come into its possession for example, names, addresses and home telephone numbers of employees.
What data comprises sensitive data?
Personal Sensitive data ("sensitive data ") consist of information relating to a data subject's (individuals):
racial or ethnic origin;
political opinions;
religious beliefs or other similar beliefs;
trade union membership;
physical or mental health or condition;
sexual orientation;
commission or alleged commission of any offences; convictions or criminal proceedings involving the data subject.
convictions or criminal proceedings involving the data subject.
What is the meaning of processing under the DPA?
The definition of 'processing' is very broad. It covers any operation carried out on the data and includes, obtaining or recording data, the retrieval, consultation or use of data, the disclosure or otherwise making available of data.
Who is a data controller?
A 'data controller' is any person who (alone or jointly with others) decides the purposes for which, and the manner in which, the personal data are processed. The data controller will therefore be the legal entity which exercises ultimate control over the personal data. Individual managers or employees are not data controllers.
The data controller is responsible for:
Personal data about identifiable living individuals
Deciding how and why personal data are processed
Information handling - complying with the eight data protection principles
Acquiring "data subjects" consent for processing sensitive data
Existing procedures for handling sensitive or personal data
Security measures to safeguard personal data
Notification
Who is a data processor?
A 'data processor' is a person or organisation who processes the data on behalf of the data controller, but who is not an employee of the data controller.
Who is a data subject?
A 'data subject' is any living individual who is the subject of personal data. There are no age restrictions on who qualifies as a data subject, but the definition does not extend to individuals who are deceased.
Are we required to notify? What does notification mean?
An organisation must not process any personal data unless it has first notified the Information Commissioner of certain particulars, including:
the organisation's name and address;
the purposes for which the data are to be processed;
any proposed recipients of the data;
countries outside the European Economic Area to which the data may be disclosed.
What is the meaning of a subject access?
This is a request by an individual to be granted access to, and be provided with a copy of, any personal data which an organisation holds about him or her. This includes the right to be provided with information about the purposes for which the organisation processes those personal data, the source of the data, the identity of any person to whom the data have been disclosed and the logic behind any automated decision making processes. A subject access request is a request to be granted access to, certain personal data which an organisation holds about an individual. This includes the right to be provided with information about:
the purposes for which the organisation processes those personal data the source of the data, the identity of any person to whom the data have been disclosed; and the logic behind any automated decision making processes preventing processing which is likely to cause the data subject damage or distress preventing processing which is taking place for the purposes of direct marketing objecting to automated decisions being taken about him or her (i.e. decisions which do not have any human involvement); Claiming compensation for any 'damage' or 'damage and distress' which is caused to the data subject (or another person) as a result of the Company's breach of the DPA. What is a data subject entitled to, if he or she makes a successful claim for compensation?
A data subject is entitled to compensation and has the right to:
prevent processing which is likely to cause the data subject damage or distress;
prevent processing which is taking place for the purposes of direct marketing;
object to automated decisions being taken about him or her (i.e. decisions which do not have any human involvement);
claim compensation for any damage or damage and distress which is caused to the data subject (or another person) as a result of a company's breach of the Act; and
request the Information Commissioner to make an assessment of the way the Company processes personal data relating to the data subject.
What can your organisation be prosecuted for?
As a data controller you can also be prosecuted for offences such as:
Notification offences - several offences may be committed in respect of data controllers' obligations to register and maintain such registration Unlawful obtaining or disclosing of personal data - it is a criminal offence to knowingly or recklessly (without the consent of the data controller) obtain or disclose personal data Enforced subject access - the Act prohibits enforced subject access; it is a criminal offence to require any data subject to request subject access in connection with recruitment, employment or provision of services Information notices - it is a criminal offence to fail to comply with an information notice issued by the Information Commissioner Enforcement notices - it is a criminal offence to fail to comply with an enforcement notice. The enforcement notice may require the data controller to stop processing: (i) any personal data; or (ii) personal data of the type specified in the notice.
What recent cases on Data Protection?
On our main website www.rtcoopers.com, we have a number of data Protection legal updates and articles.
Employment Practices Data Protection Code - Workplace Monitoring, August 2005
Abuse of Process - Damage, August 2005
New Interpretation of the Data Protection Act, August 2005
New Global Anti-Spamming Agreement, July 2004 We will endeavour to keep the case law of data protection law updated regularly.
Data Protection Articles
If you visit our website, you can down load articles on data protection.
Data Protection Books
You can obtain books online from Amazon.com and Blackwell on data protection. There are bookshops such as Hammonds.
What is the Meaning of Processing of Data?
This wide definition of 'processing' includes collecting and disclosing personal data. This means that a data controller should only collect or discloses personal data if it can justify that collection or disclosure under one of the conditions listed above.
There are four golden rules to enable processing to be fair and lawful under the DPA:
Rule 1
These conditions are broad enough to cover most business processing activities. The most useful conditions are set out below
A data controller must find a lawful justification to process personal data under Schedule 2 of the DPA.
Finding a lawful justification - The DPA prohibits any processing of personal data unless a company can justify such processing under one of the conditions set out in Schedule 2 of the DPA.
The Company may process personal data where: the data subject has consented to the processing;
it is necessary for a company to process personal data for the purpose of entering into, or performing, a contract with the data subject;
the processing is necessary to enable a company to comply with a legal obligation (other than an obligation imposed by a contract);
the processing is necessary to ensure that a company complies with a statutory duty (i.e. a duty imposed by legislation);
or the processing is necessary in the legitimate interests of a company, provided the rights and freedom of data subjects are not prejudiced as a result
Rule 2
If the data controller is processing sensitive data the data controller must find a lawful justification under both Schedules 2 and 3 of the DPA.
Processing sensitive personal data - If the Company processes sensitive personal data, then it must have a justification under Schedule 2 (see above), and must also find a lawful justification under Schedule 3 of the DPA (see opposite)
A company may process sensitive data where:
the data subject has given his or her explicit consent to the processing; the processing is necessary to exercise or perform any legal right or obligation which is conferred or imposed upon the Company by law in connection with employment;
the processing is necessary to protect the vital interests of the data subject or another person the information has been made public as a result of steps deliberately taken by the data subject;
the processing is necessary for legal purposes including taking legal advice and establishing, exercising or defending legal rights; or the processing is of information relating to the data subject's racial or ethnic origin, religious beliefs or other similar beliefs, or physical or mental health or condition, and is carried out for the purposes of monitoring equality of opportunity.
Rule 3
Where personal data are collected directly from the data subject, the data controller must serve a data protection notice on the data subject before the data are obtained or at the time of collection
Giving the data protection notice - Where information is obtained directly from the data subject, the Company must ensure that, so far as practicable, the data subject is provided with, or has made readily available to him, a data protection notice. This notice should be provided before any information is obtained. The data protection notice should describe:
the identity of the data controller;
the purposes for which the data are to be processed; and any further information necessary in the circumstances to ensure the processing is fair. For example, this will include a description of any third party recipients to whom the Company intends to disclose personal data and the purposes for their processing
Rule 4
Where the personal data have been obtained from a third party, the data controller must serve a data protection notice when data are first processed by the controller.
What are the Security Obligations under the Data Protection Act? The DPA imposes stringent security obligations on data controllers. The Company is obliged to take appropriate measures to safeguard against the unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data. A company must also ensure the reliability of staff who, have access to personal data and ensure that they are made aware of the requirements of the DPA.
What are the obligations where data processors are used? The DPA requires a company to ensure that all external data processors provide an appropriate level of security when processing personal data on the company's behalf.
What are the Marketing Rules
Data subjects have the right to object to the processing of their personal data for the purposes of direct marketing. They can do this either by notifying a company or by registering with one of the opt-out services run by the Direct Marketing Association. These opt-out services enable the individual to opt out of being contacted by mail, telephone, email or fax for direct marketing purposes.
What is the Privacy and Electronic Communications (EC Directive) Regulations 2003?
("Regulations") came into effect late 2003 and it imposes constraints on the use of e-mails, SMS marketing and Website cookies. Rule 1
Applies to all marketing messages sent by email regardless of who the recipient is The sender must not conceal their identity; and The sender must provide a valid address for opt-out requests
There are certain exemptions that apply to the Regulations. The Regulations also deal with the use of cookies on websites.
Cookies are temporary records that are kept of a person's email address and other details when a person accesses a website. The Regulations lays down the law regarding the use of cookies on websites. Under the Regulations the use of cookies and other tracking devices are:
prohibited unless subscribers and users are clearly told they are being used; and given the chance to refuse their use Regulations do not set out when, where or how information or switch off opportunity should be communicated. It is suggested that this may be communicated in a privacy policy Department of Trade and Industry is currently investigating use of cookies by data controllers. Exemptions under the Regulations:
Existing customer relationship exemption
Limited direct marketing by e-mail is permissible without an express opt-in, subject of the following requirements: The email address must have been obtained in the course of the "sale or negotiations for the sale of a product or service to that recipient" direct marketing is permitted only in respect of the marketer's "similar products and services" Recipient must be given a simple means of refusing the use of contact details for the purposes of direct marketing - e.g. a tick box Legacy Mailing List (e-mail addresses) Collected before October 2003 - maybe legally unusable
Unless email addresses of persons bought or negotiated for the sale of goods or services Opt-in required in all other cases - if persons registered on a website for a newsletter or feature in a bought-in list Information Commission Guidance - requirement to include a "simple means of refusing" further emails Useful Links If you are looking for more information on data protection, then below are some more useful links that you can access.
British Standards Institution - Freedom of Information
British Standards Institution - Data Protection
Department for the Environment, Food and Rural Affairs
Department for Constitutional Affairs
Department of Health
Environmental Information Regulations 1992 (SI 3240)
Freedom of Information: Code of Practice, Section 45
Freedom of Information: Code of Practice, Section 46
Freedom of Information: Consultation
Governments ID card consultation
Government entitlement cards consultation
Home Office RIPA Consultation
House Of Commons
Information Tribunal
Joint Parliamentary Committee on Human Rights
Notification: Self Assessment Guide
Office of Communications (Ofcom)
Trading Standards Local Offices
UK Online
World Summit on the Information Society (WSIS)
If you require further information contact us at : enquiries@rtcoopers.com
?RT COOPERS, 2005. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.
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