New – Standard Contractual Clauses!

Nigel Miller
Nigel Miller

Background

Standard Contractual Clauses (SCCs) are the most commonly used mechanism to authorise transfers of personal data from the EEA. The attraction is that they are relatively straight forward and cost-effective to implement. The problem is that the current versions are hopelessly out of date and, given that they are often simply signed and “left in the drawer”, don’t really do a convincing job in terms of protecting personal data.

It was always the intention to update them to reflect the GDPR. However, two years on from GDPR go-live in May 2018, the old versions of SCCs are still very much in use in the absence of alternative solutions. Then, in July 2020, along came the decision of the European Court of Justice (“ECJ”) in Schrems II which shook up the world of international data transfers.

Schrems II

The Schrems II decision has two main consequences.  First, the ECJ found that the EU-US Privacy Shield like its predecessor the Safe Harbor – is invalid as a transfer mechanism.  Second, although the validity of SCCs was upheld, the ECJ stressed that simply signing off the SCCs will not always be sufficient. The ECJ said that the parties to the SCCs need to:

  • carry out a transfer impact assessment as to whether there is adequate protection for data in the country concerned; and
  • if necessary, implement “supplementary measures” to ensure that individuals have equivalent protections in respect of their data as afforded under EU law.

On 11 November 2020 the European Data Protection Board (“EDPB”) issued for consultation its much awaited guidance on these issues. This sets out the steps data exporters must take to determine if they need to put in place supplementary measures to be able to transfer data outside the EEA, and provides examples of measures that can be used. For our article on this, please see here

New SCCs

And then, barely noticed, the next day, the European Commission published its proposals for the new SCCs. There is a relatively short consultation period on the proposed new SCCs expiring on 10 December 2020.  Once the proposed new SCCs are approved, probably before the end of the year, we’ll have 12 months in which to replace all existing SCCs with the new ones. And this is far from a form-filling or box-ticking exercise.

We’ve taken a look at the proposed new SCCs and find some interesting developments:

  • The SCCs adopt a modular approach to cater for various transfer scenarios. They can be used for transfers from (i) controllers to other controllers, (ii) controllers to processors, (iii) processors to sub-processors and (iv) processors to controllers. This is helpful as the current SCCs do not cope with categories (iii) or (iv) which is problematic.
  • While the current SCCs can only be used by EU based controllers, the new SCCs can also be used by parties who are outside the EU who may be subject to the GDPR by virtue of its extraterritorial reach.
  • They allow for more than two parties to sign up to the SCCs, which can be useful (for example) for intra-group transfers.
  • They also allow for additional parties to accede to the clauses from time to time as exporters or importers.  For example, onward transfers by the importer to a recipient in another third country can be allowed if the recipient accedes to the SCCs.
  • Data subjects must be able to enforce the SCCs as a third party beneficiary. As such the SCCs must be governed by a law that allows for third party beneficiary rights.
  • For transparency purposes, data subjects should be provided with a copy of the SCCs and should be informed of any change of the identity of any third party to which the personal data is disclosed.
  • In respect of transfers by a controller to a processor, or by a processor to a sub-processor, the SCCs comply with the data processing requirements of the GDPR so that it will no longer be necessary to supplement the SCCs with data processing clauses.
  • The SCCs support EU processors by allowing for the transfer by an EU processor to a controller in a third country, reflecting the limited self-standing obligations of processors under the GDPR.
  • The SCCs have also been written with Schrems II in mind and provide for certain specific safeguards. The exporter must warrant that it has used reasonable efforts to determine that the importer is able to satisfy its obligations under the clauses and must document its transfer impact assessment. In the event that, for example, the importer is subject to a legal requirement to disclose data to a government or law enforcement agency, the importer must notify the exporter and, where possible, challenge the request. The data exporter may be required to suspend the data transfers if it considers that no appropriate safeguards can be ensured.

What about Brexit?

The new SCCs may become effective just around the time the transition period expires and the UK fully leaves the EU. So, what will be the position so far as the UK is concerned?

First, the UK Government are seeking an “adequacy decision” from the European Commission as part of the Brexit deal. If there is no deal, or no adequacy decision or other transitional arrangement, in place by 31 December 2020, then the UK will become a third country and data transfers from the EU to the UK will need to comply with EU GDPR transfer restrictions. In this scenario, SCCs will be required for transfers from the EU to the UK. The new SCCs will be particularly helpful as they can be used to cover transfers by EUA based processors to UK controllers or sub-processors, something which is not possible under the current SCCs.

As regards transfers from the UK, UK rules will mirror the current GDPR rules. The UK government has confirmed that, when the transition period ends, transfers from the UK to the EEA will not be restricted.

The rules on transfers to countries outside the EEA will remain similar to the current GDPR rules. Although the UK will make its own adequacy decisions after the end of the transition period, the UK government has confirmed that it intends to recognise existing EU adequacy decisions and the EU approved SCCs.

Next steps

Organisations now have a year to review all international transfers. Where necessary this will involve conducting transfer impact assessments, implementing the new SCCs in place of the current ones, adopting supplemental measures, putting in place flow-down terms where there are onward data transfers and providing enhanced transparency to data subjects. Certain data transfers may need to be discontinued or restructured. It’s going to be a busy 2021!

H&M 35m

Fashion retailer H&M hit with €35m fine

As a result of the monitoring of several hundred employees at their service centre in Nuremberg, the Hamburg Data Protection Commissioner has issued an eye-watering fine of €35.25m against H&M. This is the second largest fine under the GDPR to date.

Since 2014, employees of H&M had been subject to extensive recording of data relating to their private lives including sensitive personal data (special category data). For example, after vacation and sick leave – even short absences – the team leaders conducted a so-called “welcome back talk”. After these talks, details were recorded including not only the employees’ vacation experiences, but also symptoms of illness and diagnoses. In addition, supervisors acquired a broad knowledge of their employees’ private lives through casual conversations, ranging from harmless details to family problems and religious beliefs. Some of the findings were then recorded, digitally stored and accessible by up to 50 managers throughout the company.

The data collected in this way was used, among other things, to profile the employees and to support employment decisions.

The practice came to light following a data breach in October 2019 when, as a result of a configuration error, the data became accessible company-wide for several hours.

Aside from the fine, to show its contrition, H&M has expressly apologized to the affected employees and has also agreed to pay compensation. Other measures which H&M has agreed to take include the appointment of a data protection coordinator, monthly data protection status updates and enhanced whistle-blower protection.

Comment:

The case serves as a reminder that the GDPR applies equally to HR data as it does to consumer / customer data. In fact, given that HR data routinely involves processing of higher risk “special category” data, such as sickness records and details of employee personal issues, great care is needed in relation to the collection and storage of such data.

Aside from the data security breach, H&M would seem to have breached several of the data protection principles: for example,  data minimisation (only collecting data that is relevant and limited to the purpose for which it is collected), purpose limitation (collecting data only for legitimate purposes) and processing data fairly and in a transparent manner, making sure that employees are aware of the data which you are collecting and storing.

If your GDPR compliance programme did not focus on HR data with at least the same rigour as other data, or needs a refresh, there are 35m reasons why now would be a good time.

Addressing privacy concerns with NHSX App

NHSX CovidThe contact tracing App being developed by NHSX is being promoted as a key tool which will enable the lockdown to be eased by automating the process of identifying people who have been in recent close proximity with someone with symptoms of Covid-19.

The success of the App is dependant to a large extent on a significant proportion of the population downloading and using it. While the App has some utility if only 20% of the population download it, contact tracing will only be effective if a significant percentage (estimated to be around 60%) of the population participate.

Whether or not people will take up the App is, in turn, critically dependant on the level of trust which people have that the system will operate as advertised and on if and how legitimate concerns as to the privacy and security of the data will be addressed.

The way it works

The App uses low power Bluetooth on smartphone devices to communicate with other devices in near proximity that also have the App installed. The App tracks the estimated distance and duration of each device from each other device. Each device that is in contact with another will issue to the other randomised numbers. This proximity log is then stored on the device.

If, soon after, a user develops symptoms of the virus, the user can then update their status on the App. The proximity log will then be uploaded to the central system that will work out the specific other devices that need to be alerted to the fact that they have been in proximity with someone who now has symptoms, so that the users of the other devices can then self-isolate.

Privacy concerns

Any government sponsored technology that can track and trace the population instinctively raises privacy concerns.

First, although the data is anonymised and does not contain any personal identifiers, it will track everyone a user comes into contact with. Data concerning one’s daily personal inter-actions and the people one associates with can be highly sensitive and not something one would wish to share with the state.

Then there is “feature creep”. While the technology is being introduced with the best intentions and in the interests of public health, once it has been widely implemented and as time goes on there will be a temptation to “enhance” it and use it for broader purposes. For example, if the App starts to record specific location data (and not only proximity data), this will be a serious privacy concern as location data can itself reveal highly sensitive personal data (e.g. meetings at other people’s homes, attendance at particular (e.g. political) events, health clinics or places of worship etc).  There may be a temptation to share the data with other government departments or the police for other purposes, such as detecting crime, or for tax or immigration purposes.

Also, let’s face it, the government and NHS do not have a great track record in respect of data security – so how secure will the data collected by the App be? There must be a risk that it could it be hacked by criminals or a rogue state sponsored hacker?

The fact that NHSX has – in contrast with many other governments (such as Ireland, Germany and Switzerland) and unlike the Google / Apple initiative – apparently opted to implement a centralised system, where data is held by the government rather than only locally on the device, heightens these concerns.

Application of Data Protection laws

Data protection laws apply to “personal data” relating to an identified or identifiable person. In the case of the App, it is used on a no names basis with the user being given a random rotating ID. The specific device ID is not used although the make and model of the device is captured. The GDPR specifically refers to an “online identifier” as being personal data. However, while pseudonymised data is regulated as personal data, truly anonymised data is not.

Although the precise way the App works is yet to be finalised and published, we must assume that the use of the App for track and trace will involve personal data and as such will be regulated by the GDPR as it will be possible to identify and distinguish some individuals (or devices) from others and to apply different treatment accordingly. Data protection laws do not stand in the way of such technologies, but such technologies must be built and implemented in compliance with data protection laws.

How to address the privacy concerns

While most people will in the present circumstances accept some degree of compromise on their privacy in the interests of their, and the nation’s, health, this has to be proportionate with the App being as minimally privacy invasive as is possible. To ensure widespread adoption on the App, it will be essential to ensure that privacy concerns are comprehensively addressed. There are a number of steps that must be taken.

Centralised v localised

First, NHSX should reconsider the centralised data approach and consider switching to a localised data solution. As the ICO commented, a purely localised system without a centralised dataset must inherently be more secure. It would also have the benefit of achieving greater interoperability with localised solutions being implemented by other countries; in particular, it is important to have interoperability on the island of Ireland.

NHSX counter this, however, by saying that there are public health benefits in their having access to the big data for analytics and research so as to learn more about the virus. It may also help limit malicious self-reporting (which could be done to try to put someone into self-isolation).

While a centralised system can be made to work, it is the case that much greater efforts in terms of data security will be required if public confidence is to be won over. There is a trade-off between functionality and public confidence; the more you try to get of the one, the less you get of the other. And public confidence is critical for widespread adoption, and ultimately for success, of the App.

There have been reports in the past few days of NHSX investigating the feasibility of transitioning the App to Apple and Google’s technology, and this could indicate a change of heart and a shift towards a localised data approach.

Transparency

Second, transparency. Provision of transparent information regarding how a person’s data is to be used is a central requirement under the GDPR. This requires that information be provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language.

Given that the App is to be used by the general population, the privacy notice will need to be carefully and skilfully drafted so that it is accessible to all whether young, old, or with reading difficulties. It is yet unknown what the age requirement will be for the App; but particular care will be needed for information addressed to children.

We also need to know who will be the “controller” of this data and with whom it may be shared and for what purpose. Will the controller be the NHS, or will it be the Government?

Risk assessment

Transparency will also be well served by making public the NHSX Data Protection Impact Assessment. Under GDPR, a DPIA – a form of risk assessment – is required whenever using a new technology that is likely to result in a high risk to the rights and freedoms of individuals. The GDPR says a DPIA is specifically required where the technology involves a systematic and extensive evaluation of personal aspects relating to individuals which is based on automated processing, and on which decisions are based that significantly affect the person; or where there is processing on a large scale of special categories of data such as health data; or where there is  systematic monitoring of a publicly accessible area on a large scale. In some ways, the App ticks all of these boxes and the DPIA will be a critical document.

The DPIA must contain a systematic description of the processing operations and the purposes for which the data will be used, an assessment of the necessity and proportionality of the processing in relation to these purposes, an assessment of the risks to the rights and freedoms of individuals and the measures to be taken to address these risks, including safeguards and security measures to ensure the security of the data.

NHSX must share this DPIA as soon as possible with the ICO (as contemplated by Art 36 GDPR) for consultation. While not a legal requirement, it should also be made public for wider consultation. Unless the government so requires, the DPIA does not need to be approved by the ICO as such; however, NHSX should consider and implement as appropriate any advice and recommendations that the ICO, as the independent privacy watchdog, may put forward.

Finally, the working of the App should be open to audit and review by independent experts, not as a one-off, but on an ongoing basis.

The lawful basis and consent

Under data protection laws, processing of personal data is only lawful if there is a “lawful basis” for the processing. The GDPR sets out six possibilities; the main options for the App will be user “consent” or “performance of a task in the public interest”. Health data requires an additional lawful basis which could be satisfied by “explicit consent” or for public health reasons.

It is not yet known which of these lawful bases will be applied. While the App is entirely voluntary to use, it may be that consent is not the best option as it can be difficult to establish that a valid consent has been obtained. However, consent may be required under the GDPR on the basis that the App involves “automated decision making”.

As the App accesses data on the device, it could be that consent is required under the Privacy and Communications Regulations (PECRs). If consent were required under PECRs, then it would also be necessary to use consent as the lawful basis under the GDPR. Consent will not be required under PECRs if the exemption applies where the access to the data is “strictly necessary for the provision of” the service requested by the user. If, however, the App is to access any data that is not “strictly necessary”, then consent would be required by law.

While the App may or may not rely on “consent” as the lawful basis, it is important for public trust that its use is truly voluntary. A person is free to download it, and delete it, as they wish. They are free to choose whether to update their health status or not. And – if warned that they have been in proximity with an infected person – they are free to self-isolate or not as they choose.

Data minimisation

One of the central principles of the GDPR is ‘data minimisation’ – that data being collected must be limited to what is necessary in relation to the purposes for which they are collected. It is essential for this, therefore, to identify and articulate the purpose and then test whether the data being collected is necessary for this.

For example, the App requires proximity data, but it does not require location data. If there is the potential with a centralised system to add additional data elements, such as location data, then that could breach this central principle of the GDPR.

It has been suggested that users of the App will not need to add their name or other identifiers, but will be required to enter the first half of their post code. This alone will not ordinarily be sufficient to identify a person, but may serve a purpose in enabling NHSX to spot clusters of infection.

Purpose limitation

Under GDPR data can only be collected for specified, explicit and legitimate purposes and must not be further processed in a manner that is incompatible with those purposes. The GDPR allows for further processing for scientific research or statistical purposes in addition to the initial purposes.  This is an important legal constraint on feature creep, but is it enough to give people confidence that their data will not be used for other purposes?

Storage limitation

A further principle is that data must not be kept for longer than is necessary for the purposes for which the personal data are processed. A key issue is what happens to all the data after the Covid-19 crisis has subsided and it will no longer be necessary to track and trace. The data should then be securely destroyed or completely anonymised, but what guarantee is there that this will happen? The data retention period in relation to the data must be set out in the privacy notice to be issued with the App. This will need to reflect this principle and we have to have confidence that NHSX will honour it.

Data security

It is a fundamental requirement of data protection that appropriate technical and organisational measures are taken to ensure a level of data security appropriate to the risks. This will require implementation of state-of-the-art encryption of the data at rest and in transit. Following the GDPR principle of data protection “by design and by default”, data security and compliance with the other principles must be designed in to the way the App is built and used.

While data security is never 100% guaranteed, the public will need to be satisfied through the provision of transparent information that rigorous safeguards are in place.

Do we need a specific NHSX App watchdog?

While we have the ICO who is the regulator for compliance with data protection laws, we do have separate watchdogs for specific areas, for example, biometrics and communications monitoring. Given the speed at which the App needs to be rolled out if it is to be effective, and given that the ICO is well established and respected as the regulator for data matters under GDPR and the Data Protection Act 2018, with powers to audit, investigate complaints and issue substantial fines, the ICO is the appropriate regulator and an additional regulatory regime should not be needed.

Is specific legislation needed?

Some have suggested that specific regulation is needed to enshrine some necessary safeguards in law. Again, given timing imperatives, and given the flexible and well developed structure we already have with the GDPR and the Data Protection Act 2018, this may be a “nice to have” but should not be necessary.

Thoughts for employers

Clearly, contact tracing could be highly beneficial to employers, since it could reduce the need to carry out manual contact tracing in the event an employee falls ill with coronavirus. So, can an employer make downloading the App compulsory?

The answer will depend to some extent on the lawful basis that is relied on for the processing of personal data through the App. If the lawful basis is “consent”, then compelling employees to download and use the App will invalidate any apparent consent since it will not have been freely given. If the lawful basis is “public interest”, then employers will need to decide if they should seek to compel, or alternatively strongly recommend, their employees to download and use the App. If they seek to compel, and an employee refuses, it is hard to see that the employee can with fairness be subjected to any detriment other than as required for health and safety.

We all have a strong interest in the App being rolled out, gaining maximum levels of public adoption and making a valuable contribution to fighting the virus. For this it will be necessary for the public to have a high level of trust in the App and its privacy safeguards. Good data protection will be an essential ingredient to achieving this trust.

Nigel Miller is a partner in Fox Williams LLP and leads the Data Protection and Privacy team. He is a Certified Information Privacy Professional (CIPP/E).

Ben Nolan is an associate in the Data Protection and Privacy team at Fox Williams LLP.

Supreme Court absolves Morrisons of liability for rogue employee data breach

In a landmark judgment, important from both a data protection and employment law standpoint, the Supreme Court has held that vicarious liability cannot be imposed on Morrisons in a case which concerned the unlawful publication of Morrisons’ employee personal data online by a rogue employee.

Facts

The case involved a class of 9,263 Morrisons employees or ex-employees whose personal data had been unlawfully made available online back in 2013. The information (which included name, address, gender, date of birth, phone numbers, national insurance number, bank sorting code, bank account number and salary) was published by a rogue employee, Mr Andrew Skelton, as an act of vengeance against Morrisons due to a grudge he held against his employers for disciplinary action taken against him earlier that year. Whilst Mr Skelton was entitled to access the data as part of his role, he was only permitted to share the data with the company’s auditors.

The claims brought against Morrisons were made under the Data Protection Act 1998 (DPA), under common law for misuse of private information and breach of confidence, and also on the basis that Morrisons were vicariously liable for the acts of Mr Skelton. Damages were sought for the distress, anxiety, upset and damage which had been suffered by the data subjects concerned.

The court noted that Morrisons had also spent more than £2.26m in dealing with the immediate aftermath of the disclosure. A significant element of that sum was spent on identity protection measures for its employees. Meanwhile, Skelton, the employee, was convicted of a number of criminal offences and sentenced to eight years’ imprisonment.

High Court and Court of Appeal decisions

In 2017, the High Court found in favour of the claimants, ruling (among other matters) that Morrisons could be held vicariously liable for the acts of Mr Skelton since he had been provided access to the relevant data in the course of his duties as an employee and his publication of the data was “a seamless and continuous sequence of events”  relating to his duties. Furthermore, it was held that there was nothing which would prevent vicarious liability from applying under the DPA. Morrisons appealed to the Court of Appeal but were unsuccessful and so further appealed to the Supreme Court which heard the case at the end of last year.

Supreme Court ruling

The Supreme Court’s decision covered the following key issues.

  1. Could Morrisons be vicariously liable for Mr Skelton’s conduct?

The court found that the decision of the High Court and Court of Appeal relating to vicarious liability had focused too heavily on the judgment of Lord Toulson in an earlier Supreme Court decision (Mohamud [2016]) (coincidentally also involving Morrisons) in which a customer at a petrol station had been assaulted by an employee of the petrol station. Much had been made by the judges in the lower courts of Lord Toulson’s comments in that case that the decision of the employee had been connected to his employment and that his motives for assaulting the customer were “irrelevant”.

However, the Supreme Court found that Lord Toulson’s comments in the Mohamud judgement had been taken out of context and should not be construed as introducing new principles to the concept of vicarious liability. It ruled that the “close connection” test remained the appropriate test for determining whether vicarious liability could be imposed on an employer. Pursuant to the close connection test:

“…the wrongful conduct [of the employee] must be so closely connected with acts the employee was authorised to do that, for the purposes of the liability of the employer to third parties, it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment.”

In the present case, the Supreme Court found that the “close connection” test was not met (despite there being a close temporal and causal link between Mr Skelton’s role and his publication of the data on the internet) for the following key reasons:

  • The disclosure of the data on the Internet did not form part of Mr Skelton’s functions or field of activities – he was not authorised to disclose the relevant data to anyone other than KPMG.
  • The motives of Mr Skelton in disclosing the data were important – the fact that he did so for personal reasons was “highly material”. Indeed, the reasons Mr Skelton had decided to publish the data was to cause harm to Morrisons due to his personal vendetta against the company.
  1. Does the DPA exclude vicarious liability for statutory torts committed by an employee who is acting as a data controller under the DPA?

Although not strictly necessary given the court’s finding that Morrisons could not be held vicariously liable based on the facts of the case, the court did give its views on the above question which are important from a data protection perspective.

It had been agreed by all parties that both Morrisons and Mr Skelton were independent controllers in relation to the data which was published online. In light of this, Morrisons had argued that it could not be held vicariously liable for the acts of Mr Skelton under the DPA since it had complied with its obligations as a controller under the DPA and Mr Skelton was acting as a separate controller when disclosing the data. Morrisons argued that the DPA did not allow for vicarious liability to be imposed on them for Mr Skelton’s actions as a controller.

However, the Supreme Court rejected this position, stating that since the DPA does not indicate (whether expressly or impliedly) whether the principle of vicarious liability applies to breaches of its obligations, an employer can be found vicariously liable for breaches which are committed by an employee who is acting as a data controller in the course of his or her employment.

Comment

The decision will be welcomed by business since it shows that employers will not generally be held liable for the acts of rogue employees acting outside their “field of activities”. However, it is important to bear in mind that the decision came down to the specific facts of the case. It is entirely possible that there could be cases where unauthorised disclosure of personal data by an employee results in an employer being held vicariously liable; an example could be an employee negligently leaving sensitive documents on a train on the way to a business meeting, or causing a data breach by failing to follow the company’s data security policies. As ever, implementing appropriate data security measures and policies and reinforcing the need for employees to follow such policies can help to reduce these risks.

The case is also the first to come before the Supreme Court involving a class action brought by data subjects for a violation of data protection rules. Notwithstanding the decision in favour of Morrisons, we expect class actions in relation to data breaches to become increasingly common.

Finally, although the case was brought under the (old) Data Protection Act, the position would not be any different under the GDPR and the new DPA.

 

Ben Nolan (solicitor, qualified in Scotland) and Nigel Miller (partner)

Codes of Conduct and Certification Schemes: one step closer….

Sian Barr

In brief

The GDPR provides two ways in which certain organisations can demonstrate that their processing of personal data is compliant with data protection laws, thereby satisfying the accountability requirement under the GDPR: Codes of Conduct and Certifications Schemes.

While each of these procedures is voluntary, organisations have been prevented from attempting to use them up until now as the administrative framework for gaining the requisite approval from the ICO of a proposed code or scheme has not been ready.

The good news is that these processes are now open: as of 27 February 2020, organisations can submit their proposals for a GDPR code of conduct or certification scheme criteria to the ICO for their approval.

In practice though, controllers and processors must continue to be patient as there are currently no approved codes or schemes out there.

The detail

  • Accountability is one of the data protection principles, requiring organisations to demonstrate their compliance with data protection laws.
  • Codes of Conduct and Certification schemes should both be useful voluntary accountability tools, once up and running.
  • Codes of Conduct can be used by organisations such as trade, membership or professional bodies to set out practical ways in which individual members of the organisation can comply with data protection laws, in light of the data protection issues specific to their sector or businesses. Once a Code of Conduct has been approved by the ICO, individual members of the organisation will be able to sign up to it to help demonstrate their compliance with data protection legislation. Adherence to the approved Code will be monitored by a monitoring body, which will also have been approved by the ICO.
  • In its new Guidance on Codes of Conduct, the ICO describes its role, which is to:
    • provide advice and guidance to bodies considering or developing a code;
    • check that codes meet the code criteria set out below;
    • accredit (approve) monitoring bodies;
    • approve and publish codes of conduct; and
    • maintain a public register of all approved UK codes of conduct.
  • As for Certification, this tool will allow businesses to demonstrate their compliance with data protection laws in respect of specific processing activities that are covered by a certification scheme. Organisations will be able to use certification to build trust in their business and to demonstrate compliance to their customers and contractors.  In particular, the GDPR states that certification can be used to assist in compliance with data security, privacy by design and international transfer obligations.
  • In its new Guidance on Certification Schemes, the ICO describes the UK certification framework as follows:
    • The ICO will publish accreditation requirements for certification bodies to meet;
    • The UK’s national accreditation body, UKAS, will accredit certification bodies and maintain a public register;
    • The ICO will approve and publish certification criteria;
    • Accredited certification bodies will issue certification against those criteria; and
    • Controllers and processors will apply for certification and use it to demonstrate compliance.
  • Codes of Conduct and Certification Schemes are not a ‘one size fits all’ solution: they will not be relevant to all organisations. They will apply to processing within specific industries, or to specific processing activities.

Comment

Codes of conduct and certification schemes are a welcome and useful addition to the methods available to businesses to satisfy the accountability principle.  Many sectors are faced with specific data protection issues, particularly when it comes to the processing of special category data.  ICO approved norms for addressing these issues, which are codified and then used across a sector will improve compliance across the industry and ensure a level playing field for data protection compliance amongst competing businesses.

Certification too will be useful once it is available.  It may allow consumers to quickly check that an organisation can be trusted to use their personal data for certain purposes.  It is also likely to form part of the due diligence carried out on a proposed processor or sub-processor, and may feature as a requirement in data processing agreements where a relevant certification scheme is available.

Sian Barr is a Senior Associate in the commerce & technology team at City law firm Fox Williams LLP and can be contacted at sbarr@foxwilliams.com