The UK Information Commissioner's Office (ICO), responsible for administering the GDPR and privacy laws in the UK, has published its Regulatory Action Policy, setting out its objectives and priorities for the coming years. It aims to "create an environment" to protect individuals while, at the same time, ensuring that business can "operate and innovate efficiently in the digital age".
Not surprisingly in view of recent data breaches and media scandals, the ICO will focus on violations involving highly sensitive information, affecting large groups of people, or affecting vulnerable people. It will target repeat, wilful and serious miscreants. It will take into account the steps taken by the business to mitigate harm and the manner in which the violation came to its notice.
It will take particular interest in breaches involving novel issues and technologies and a high degree of intrusion – pay attention to those Data Protection Impact Assessments!
The aims to be proactive in identifying and mitigating emerging risks "arising from technological and societal change" – think AI and (again) targeted content on social media platforms.
The areas the ICO has "actively identified" as raising potential risks to individuals, and where it will take "proactive action" to study and head off risks in the next year, are listed below. The ICO will concentrate resources accordingly.
- Large scale data and cyber security breaches involving financial or sensitive information
- AI, big data and automated decision making
- Web and cross device tracking for marketing (including for political purposes).
- Privacy impacts for children (including Internet of Things connected toys and social media/marketing apps aimed at children)
- Facial recognition technology applications
- Credit reference agencies and data broking
- Use and sharing of law enforcement data, including intelligence systems
- Right to be forgotten/erasure applications.
The ICO is currently consulting with industry in relation to the Adtech and the electronic advertising ecosystem which, it has indicated, raises serious privacy concerns.
Our review of recent ICO decisions, and public press releases and statements, as well as our experience in dealing with the ICO, suggests that there are three broad areas where the ICO is particularly reactive and responsive to risk.
The ICO publishes data quarterly, highlighting the volume of data subject complaints it has received. The volume of complaints drives some ICO enforcement priorities. During 2018, there was a significant focus on nuisance telephone marketing, and this remains an area of focus. The ICO receives between 3,500 and 4,500 complaints each month about nuisance telephone marketing (including live calls and robo-calls).
Marketing calls, emails, texts and faxes are governed in the UK by the Privacy and Electronic Communications Regulations (PECR), which implement the e-Privacy Directive in the UK. Until these laws are replaced by the anticipated European e-Privacy Regulation, breaches attract maximum penalty of £500,000, lower than breaches of the GDPR. Expect fines to increase when the new regulation is introduced.
While the ICO has not identified nuisance marketing as a regulatory priority, we expect it will continue to be a key area, because of the volume of complaints by individuals. Not say, these can be low-hanging fruit. The ICO's enforcement strategy also includes disrupting the ability of individuals to set up companies or act as company officers, when they are associated with companies that knowingly breach PECR.
By contrast, the ICO has not been active in enforcing the cookie rules under PECR, as it has typically received fewer than one hundred complaints a month on this topic.
The ICO also publishes statistics on the number of breach notifications it has received. Before the GDPR, the ICO received around 700 notifications each quarter. By contrast in Q2 2018/19 (the most recent release) the ICO received notifications of 4,056 data security incidents.
The overwhelming majority of these notifications relate to disclosure of data. As said above, data breaches remain a key focus of action. Most recent fines, for personal data breaches, relate to breaches before the GDPR; however, on at least two occasions the ICO issued its then maximum fine of £500,000.
In our experience the ICO seems to triage data breach notifications and the response will depend on the perceived severity
Data subject rights
The ICO does not routinely publish statistics on the number of complaints about the exercise of data subject rights. However, in 2016, it noted that almost half of complaints received related to subject access requests and the difficulties people have accessing their information.
There is a particular risk that if several complaints are made about similar issues, the ICO will investigate the policies and procedures in place.
The ICO has provided guidance on the situation following Brexit. If the Withdrawal Agreement is accepted by the UK Parliament then the GDPR will continue to apply in the UK during the transition period (for how long will this be relevant?!). If a no-deal Brexit occurs:
- The EEA is considered adequate so data flows from the UK to the EEA can continue.
- Legacy safeguards such as standard contractual clauses will continue to be valid. These were issued by the European Commission and the ICO anticipates preparing updated UK standard contractual clauses.
The Information Commissioner has made interventions on the need for strong international cooperation and collaboration, given that global data flows produce shared issues in multiple jurisdictions.