Welcome to the March Global Data & Privacy Update. This update is dedicated to covering the latest legislative developments affecting the way data is managed and protected, as well as reporting on the most recent news governing data breaches and industry developments.

ICO Draft Guidance on Consent requirements within the General Data Protection Regulation ("GDPR")

The ICO has published draft guidance on compliance with the consent provisions in the GDPR. Consent is one basis for the lawful processing of data and the standard set for consent is higher under the GDPR, which comes into force from May 2018.

The guide intends to offer advice on compliance with the consent requirements in practice. As the publication is a draft paper, the ICO are requesting feedback on the guidance provided by 31 March 2017. We plan to submit our views as part of the consultation and encourage all our readers to do the same. If you would like to discuss the paper further please feel free to contact Mark Williamson or Isabel Ost.

Click here to view the ICO Guidance.

Article 29 Working Party and EDPS outline MDL5 concerns

The Article 29 Working Party (WP29) and the European Data Protection Supervisor (EDPS) have raised concerns about the proposed EU Fifth Money Laundering Directive (MLD5) and its potential impact upon individuals' fundamental rights to privacy and data protection.

Under the proposed MLD5 the policy purposes (while not yet clearly defined) may be more expansive than currently under the Money Laundering Directive of countering money laundering and terrorist financing, and where invasive personal data processing is currently permitted strictly within this ambit. The WP29 and EDPS are concerned by the potential expansion of purposes for processing data beyond the current use (for preventing money laundering and terrorist financing), which may reduce data protection safeguards. Also where data collected for one purpose is used for other unrelated purposes, it will be an infringement on the data protection principle of purpose limitation and proportionality.

There are also concerns that MLD5 will widen the access to beneficial ownership information for national authorities to use not just for the most serious of offences, such as counter-terrorism, where high levels of intrusion to individual freedoms are justified, but also for lesser offences, such as facilitating tax obligation enforcement. This could impact upon individuals' rights to privacy and data protection severely.

Click here to view the EDPS Opinion on the proposal for the MLD5.

ICO fines Digitonomy for spam texts without consent

The ICO has issued a penalty of £120,000 to Digitonomy Ltd (Digitonomy) under section 55A of the Data Protection Act 1998 for sending spam marketing texts to customers without their required consent. This was a serious contravention of Regulation 22 of the EU Privacy and Electronic Communications Regulations 2003.

Between April 2015 and February 2016, over five million unsolicited marketing texts were received by consumers encouraging them to apply for loans, resulting in 1,464 complaints being made against the company. Under the EU Regulation, companies cannot use electronic marketing unless they have obtained specific consent from the recipients to receive such marketing material. It was found that Digitonomy did not have the proper consent from the recipients, and had failed to undertake appropriate due diligence against the affiliate marketing channels, from which Digitonomy acquired the customers' data, to ensure that the necessary consent had been obtained.

Click here to view the ICO's monetary penalty notice.

Article 29 Working Party approves Google model clauses

The Article 29 Working Party (formed of various EU Data Protection Authorities ("DPAs"), led by the Irish DPA) has confirmed that Google's model contractual clauses for the international transfer of European customers' personal data using G-Suite (formerly Google Apps) and Google Cloud Platform are in line with the EU Data Protection Directive.

The Article 29 Working Party considered Google's model clauses, which are based on the European Commission's model clauses, and confirmed that they meet the requirements for international data transfer out of the EU. In practice, this means that Google's European business customers can rely on the model clauses to transfer personal data out of the EU without any further authorisation.

Click here to view Google's public statement on the above.

Court of Appeal overturns High Court decision on subject access request

The Court of Appeal (CA) has overturned a High Court decision preventing beneficiaries of a Bahamian trust from obtaining information on the trust (to be used in a Bahamian trust dispute) via a subject access request under s7(2) Data Protection Act 1998 (DPA). In doing so, the CA has also ordered Taylor Wessing (TW) to release the information concerning its client, a Bahamian trust company, that had administered the trust. TW had originally refused the release of the information on the grounds of the legal professional privilege exemption under paragraph 10 of Schedule 7 of the DPA.

In reaching its decision, the CA held that: (i) legal professional privilege only applies to documents carrying legal professional privilege for the purposes of English law; (ii) TW could not show satisfactorily that compliance with the subject access request would involve a disproportionate effort on their part to uncover the requested information (proving this required greater justification than an assertion that searching through documents would be difficult); and (iii) the High Court judge should have ordered the release of the information in the first instance, as the material was to be used in Bahamian litigation.

Case: Dawson-Damer and others v Taylor Wessing LLP [2017] EWCA Civ 74

Australia passes new Data Protection legislation

The Australian Parliament passed on 13 February the Privacy Amendment (Notifiable Data Breaches) Act 2017, which amends the Privacy Act 1988, the current Australian data protection legislation, to create provisions requiring organisations to notify the regulator in the event of a data breach. Unlike the draft legislation issued in December 2015, where the notification requirement applied to all breaches that may result in serious harm, the revised wording states that it is only when a breach is likely to result in serious harm that notification is required. There are fears that the introduction of a reasonable person test as part of the determination of whether or not an eligible data breach requiring notification has arisen will cause confusion.

Other key provisions of the Act include: (i) an exemption from notification where remedial action is or has been taken; (ii) a 30-day grace period to allow organisations to evaluate, on discovery of a data breach or when reasonably aware that a breach has occurred, whether or not such a breach is likely to result in serious harm; and (iii) the ability for the Office of the Australian Information Commissioner to apply to the Australian courts in the case of serious breaches by corporate bodies for a maximum civil penalty of AUS $1,800,000. Christie added that "the average cost of a data breach… [is expected to] increase, at a minimum, by a factor of four".

Please click here for a press article on the above.

Japanese Supreme Court dismisses Right To Be Forgotten claim against Google

The Supreme Court of Japan has dismissed an individual's claim of their 'Right to be Forgotten' (RTBF) against Google, in which the individual had sought the removal of various reports relating to his committal of a serious crime. This decision departs from that of Costeja in the European Courts, a case with similar facts to this one, but where the material was ordered to be removed from the search engine. This was on the grounds that the rights of the data subject were held to override not just the economic interest of the search engine but even the interest of the general public in having access to the information.

It was stated in this decision that an individual can demand that a search engine delete a search result, but the search engine would only be required to remove the material if the individual's interest in an article not being in the public domain obviously outweighed the interests achieved through publication. It was held that the individual's interest failed to obviously outweigh the general public interests. This was both because the crime was strongly condemned by society and as such awareness that the individual had committed the crime was in the public's interests, and because search results would only be generated when the individual's name and area where he lived were entered, thus restricting publication.