Data Protected - United Kingdom

Last updated March 2020

General | Data Protection Laws

National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement

ePrivacy | Marketing and cookies

National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone

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General | Data Protection Laws

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National Legislation

The General Data Protection Regulation (EU) (2016/679)(“GDPR”). 

The UK passed the Data Protection Act 2018 (“DPA 2018”) to help implement the GDPR. The DPA 2018 also implements the Law Enforcement Directive and imposes data protection obligations on the processing of personal data for national security purposes.

The UK left the EU on 31 January 2020. However, in accordance with the Withdrawal Agreement entered into by the EU and the UK, the UK will continue to apply the GDPR until the transition period ends, which is currently intended to take place on 31 December 2020. 

At the end of the implementation period, the UK will incorporate an amended version of the GDPR into UK law (“UK GDPR”) which will continue to apply in parallel with an amended version of the DPA 2018. The amendments will be made under The Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019. They make minimum changes necessary for the UK GDPR to continue to operate after Brexit, for example by removing references to participation in the European Data Protection Board, but do not otherwise affect the substantive obligations under that law.

Finally, under the Withdrawal Agreement the GDPR will continue to apply to the processing of personal data about data subjects outside the UK where such processing took place under the GDPR prior to the end of the transition period. In other words, UK-based controllers may have to comply with both the UK GDPR and the GDPR depending on the personal data in question. However, this parallel application of UK and EU law will cease to apply if the UK is subject to an adequacy finding.

This summary considers the position up to the end of the transition period but also highlights some of the changes that will take place after that date.

Entry into force

The GDPR has applied since 25 May 2018.

The majority of the DPA 2018 came into force on 25 May 2018.

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National Supervisory Authority

Details of the competent national supervisory authority

The Information Commissioner will continue to act as the supervisory authority in the UK.

The Information Commissioner 
Wycliffe House
Water Lane
Wilmslow
Cheshire SK9 5AF
United Kingdom

www.ico.org.uk

During the transition period, the UK Information Commissioner will have limited rights of representation on the European Data Protection Board. After the transition period it will have no official role in the Board but might be accredited with some form of unofficial “observer” status.

Notification or registration scheme and timing

There is no obligation to notify regulators of any processing under the GDPR. However, controllers and processors must keep a record of their processing and make it available to their supervisory authority on request (subject to limited exemptions)

In the UK, regulations have been introduced to require controllers to pay charges to the Information Commissioner to help fund her office. Those charges are either £40, £60 or £2,900 depending on the size and nature of the controller’s business. There are some limited exemptions to this obligation to pay charges.

Exemptions to notification

Not applicable

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Scope of Application

What is the territorial scope of application?

The GDPR applies to the processing of personal data in the context of the establishment of a controller or processor in the EU.

It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.

The European Data Protection Board has issued Guidelines on the territorial scope of the GDPR (3/2018).

At the end of the transition period, the UK GDPR will apply a similar territorial test, save that references to the EU will be replaced with references to the UK.

Is there a concept of a controller and a processor?

Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.

Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited

Are both manual and electronic records subject to data protection legislation?

Yes. The GDPR applies to both electronic records and structured hard copy records.

Are there any national derogations?

The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.

The DPA 2018 contains a large number of additional national derogations, including for journalism, prevention of crime, collection of taxation, immigration control and legal proceedings.

The DPA 2018 also implements the Law Enforcement Directive and imposes data protection obligations on the processing of personal data for national security purposes.

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Personal Data

What is personal data?

Personal data is information relating to an identified or identifiable natural person.

This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as cookies.

Is information about legal entities personal data?

No. However, information about sole traders and partnerships is likely to be personal data.

What are the rules for processing personal data?

All processing of personal data must comply with all six general data quality principles. Personal data must be: (i) processed fairly, lawfully and transparently; (ii) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (iii) adequate, relevant and not excessive; (iv) accurate and, where necessary, up to date; (v) kept in an identifiable form for no longer than necessary; and (vi) kept secure.

The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or recipient’s legitimate interests, except where overridden by the interests of the data subject.

These rules are almost identical to the core requirements for processing personal data in the old Data Protection Directive. The European Data Protection Board has issued Guidelines on the performance of a contract processing condition for online services (2/2019).

Are there any formalities to obtain consent to process personal data?

The requirements for consent under the GDPR are strict. 

To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.

In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials. 

The Article 29 Working Party has issued Guidelines on Consent (WP259).

Are there any special rules when processing personal data about children?

Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.

The DPA 2018 has reduced the age at which a child can provide a valid consent to online services to 13 years old. No age limit applies if the processing is for the purposes of preventative and counselling services.

The Information Commissioner has issued the Age Appropriate Design Code of Practice which contains a number of very stringent requirements when processing personal data about children. The Code is not in force yet and is not binding but will be taken into account by the Information Commissioner and the Courts.

Are there any special rules when processing personal data about employees?

The GDPR allows Member States to implement more specific national rules governing the processing of personal data about employees. It may also be possible to process special category personal data where it is necessary for a legal obligation in the field of employment law.

The UK has not implemented detailed rules regarding the processing of personal data about employees. However, it has made it a criminal offence to require an individual to make a subject access request to obtain their records in the context of recruitment. The UK has separate laws regulating employers’ access to the criminal records of their employees or applicants.

The Information Commissioner previously issued an Employment Practices Code setting out how data protection law applies to information about employees. However, it has not yet been updated in light of the GDPR.

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Sensitive Personal Data

What is sensitive personal data?

Special category data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.

The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.

Information about criminal offences is dealt with separately and is subject to even tighter controls.

Are there additional rules for processing sensitive personal data?

Special category data may only be processed if a condition for processing special category data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the fields of employment, social security and social protection law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.

The DPA 2018 provides further clarity about when these processing conditions apply. In particular, these processing conditions will permit processing in a wide range of situations such as for the purposes of equal opportunities, insurance, research, political parties, the prevention of unlawful acts or dishonesty, and the provision of pensions. In many cases, a controller must prepare an “appropriate policy” if it relies on one of these conditions to process sensitive personal data.

Are there additional rules for processing information about criminal offences?

It is only possible to process personal data relating to criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects.

The DPA 2018 allows the processing of information about criminal offences in broadly similar situations to those in which sensitive personal data can be processed. This includes processing with the consent of the individual.  

Are there any formalities to obtain consent to process sensitive personal data?

Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.

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Data Protection Officers

When must a data protection officer be appointed?

Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing special category personal data on a large scale (including processing information about criminal offences).

Data protection officers must also be appointed where required by national law. However, the DPA 2018 does not impose any additional obligations to appoint a data protection officer (save in respect of processing under the implementation of the Law Enforcement Directive).

What are the duties of a data protection officer?

The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. Details of the data protection officer must be communicated to the relevant supervisory authority. 

The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).

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Accountability and Privacy Impact Assessments

Is there a general accountability obligation?

The GDPRadds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.

Are privacy impact assessments mandatory?

A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing on a large scale either special categories of personal data or personal data relating to criminal convictions and offences; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV). Where the assessment indicates the risk cannot be mitigated, the controller must consult the relevant supervisory authority.

The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above. 

In the UK, the Information Commissioner has drawn up a list of “high risk processing”, available here. It includes activities such as data matching and artificial intelligence.

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Rights of Data Subjects

Privacy notices

controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.

The Article 29 Working Party has issued Guidelines on Transparency (WP260).

In the UK, there is no obligation to provide this information in English, though it may be difficult to show that the information has been fairly provided if it is not in a language the data subject is familiar with. 

The DPA 2018 contains a wide range of exemptions to the obligation to provide privacy notices and to comply with other rights of data subjects. For example, exemptions apply where the personal data is privileged, compliance would prejudice the prevention or detection of crime or would interfere with certain corporate finance activities.

Rights to access information

Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The response must be provided within a month, though this can be extended by two months if the request is complex.

The DPA 2018 contains a wide range of exemptions to the obligation to respond to subject access requests.

Rights to data portability

Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.

The Article 29 Working Party has issued Guidelines on data portability (WP242).

The DPA 2018 contains a number of exemptions to the obligation to provide data portability.

Right to be forgotten

data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data. 

The European Data Protection Board has issued Guidelines on the criteria of the Right to be Forgotten in the search engines cases under the GDPR (part 1) (5/2019).

The DPA 2018 contains a number of exemptions to the right to erasure.

Objection to direct marketing

data subject can object to their personal data being processed for direct marketing purposes at any time. This includes profiling to the extent related to direct marketing.

Other rights

The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition

Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subjectThe Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).

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Security

Security requirements in order to protect personal data

The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.

In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. 

Specific rules governing processing by third party agents (processors)

controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.

The controller must have written contracts with its processor containing the enhanced processor clauses.

Notice of breach laws

A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified. 

Specific notice of breach laws apply to the electronic communications sector under national laws implementing the Privacy and Electronic Communications Directive and to operators of essential services and digital service providers under national laws implementing the Network and Information Systems Directive.

The Article 29 Working Party has issued Guidelines on Personal Data Breach Notification (WP250).

In the UK, controllers in certain sectors may be required to inform sectoral regulators of any breach (for example, financial services firms may be required to inform the Financial Conduct Authority of any breach).

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Transfer of Personal Data to Third Countries

Restrictions on transfers to third countries

The GDPR contains a restriction on transborder dataflows. A transfer can take place if it: (i) is to a whitelisted country; (ii) is made pursuant to a set of Model Contracts; (iii) is made pursuant to binding corporate rules; (iv) is made to an importer who has signed up to an approved code or obtained an approved certification; or (v) is otherwise approved by the relevant supervisory authority.

Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.

The position is broadly the same as under the old Data Protection Directive. One notable change is the introduction of the so-called minor transfer exemption, though that exemption will be very hard to rely on in practice.

The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018).

The DPA 2018 allows the Government to issue regulations to specify that certain types of transfer will be deemed to be in the public interest, or are prohibited. No such regulations have been issued.

At the end of the transition period, the rules on transborder dataflow will apply to any transfer of personal data outside of the UK. However, the UK will recognise the EU as providing adequate protection and will grandfather the existing adequacy findings for whitelisted countries, thus largely retaining the current framework

Notification and approval of national regulator (including notification of use of Model Contracts)

In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer. 

For example, there will be no obligation to get approval for the use of Model Contracts (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.

Use of binding corporate rules

The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority (subject to approval through the consistency mechanism) that will cover transfers from anywhere in the EU.

In the UK, the Information Commissioner has approved binding corporate rules from GE, Philips, Atmel, Accenture, Hyatt, JP Morgan, BP, IMS Health, Spencer Stuart, CareFusion, First Data, eBay, Novo Nordisk, Citigroup, Intel, American Express, Cargill, Motorola, E&Y, GsK, Fluor, Flextronics, Latham & Watkins, CA Technologies, Astra Zeneca, Schlumberger, BT, IBM, Box and Linklaters LLP.

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Enforcement

Fines

The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.

A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.

The Article 29 Working Party has issued Guidelines on administrative fines (WP253).

The DPA 2018 gives the Information Commissioner the ability to issue administrative fines by serving a Penalty Notice.

Imprisonment

The DPA 2018 makes it a criminal offence to: (i) unlawfully obtain personal data; (ii) alter records to prevent disclosure in response to a subject access request; (iii) intentionally or recklessly re-identify individuals from anonymised or pseudonymised data; or (iv) require individuals to make a subject access request for health or criminal record information in certain circumstances. Finally, there are also a number of offences for obstructing an investigation by the Information Commissioner.

Under the DPA 2018, directors, managers and similar officers are liable for offences committed by a company as a result of their consent, connivance or neglect.

However, none of these offences are punishable by imprisonment.

Compensation

Data subjects have a right to compensation in respect of material and non-material damage.

Other powers

Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing

The DPA 2018 gives the Information Commissioner the ability to exercise these powers through Information Notices, Assessment Notices and Enforcement Notices. 

Practice

Fines: The Information Commissioner has published two notices of intent to fine (draft fines) to British Airways for £183 million and Marriott for £99 million. Both of the notices relate to data breaches following a cyber attack. 

In December 2019, the Information Commissioner issued a fine to Doorstep Dispensaree, a small local pharmacy for an amount of £275,000 for serious lapses in securing the personal data of its customers. Unlocked crates, disposal bags and a cardboard box containing elderly clients' personal data were discovered on the premises of the pharmacy, and the Commissioner considered this a very serious breach since sensitive personal data of elderly clients was handled in a cavalier manner.

Other enforcement action: The Information Commissioner’s 2018/2019 Annual Report indicates that during that period she issued: (i) 23 monetary penalties for violations of electronic marketing rules, totaling £2,053,000; and (ii) 3,335 notices of intent to fine (draft fines) for non-payment of data protection fees.

The Information Commissioner also exercised a range of other powers in 2018/2019, issuing 14 enforcement notices, 11 information notices and five criminal prosecutions (mainly for unlawful disclosure of personal data). 

The number of data protection complaints received by the Information Commissioner also increased dramatically following the adoption of the GDPR. In 2017/2018, she received 21,019 complaints. In 2018/2019, the number of complaints rose to 41,661. She also received nearly 140,000 complaints about electronic direct marketing in 2018/2019.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

The Privacy and Electronic Communications (EC Directive) Regulations 2003 (the “PECR”) which implement the Privacy and Electronic Communications Directive. These regulations came into force on 11 December 2003.

The PECR was amended on 26 May 2011 to implement the amendments to the Privacy and Electronic Communications Directive

There will be very limited changes to these laws after Brexit. However, the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 confirm that consent under the PECR must meet the consent standards under the GDPR.

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Cookies

Conditions for use of cookies

Consent is needed for the use of cookies unless the cookie is: (i) strictly necessary for the provision of a service to that subscriber or user; or (ii) for the sole purpose of a transmission of a communication.

The PECR expressly states that consent can be given through browser settings, though no such browser settings have been found to provide this consent as yet.

Regulatory guidance on the use of cookies

The Information Commissioner issued updated guidance on cookies in July 2019 (here). That guidance made it clear that: (a) implied consent is not sufficient and so continuing to use a website is not sufficient to constitute consent; (b) consent must be obtained before cookies are set; (c) the class of “strictly necessary” cookies is limited and, for example, does not include persistent authentication cookies.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

It is only possible to send direct marketing e-mails to individual subscribers if they consent.

Conditions for direct marketing by e-mail to corporate subscribers

The restrictions on e-mail marketing in the PECR do not apply to corporate subscribers (including individuals at corporates).

Exemptions and other issues

It is permitted to send e-mails for the purposes of direct marketing if the similar products and services exemption applies. For this exemption to apply the recipient’s details only need to have been collected in connection with the sale or negotiation for sale of products and services. There is no need for an actual contract to have been formed. 

The PECR also prohibits direct marketing e-mails from being sent if: (i) the identity of the sender is disguised or concealed; or (ii) if an opt-out address is not provided. The sender must also include the eCommerce information.

Directors and other officers can be fined in certain cases where a breach of these rules arises from their consent, connivance or neglect.

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Marketing by Telephone

Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)

It is not permitted to make direct marketing calls to individual subscribers who have either: (i) previously objected to such calls; or (ii) are listed on the Telephone Preference Service.

Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)

It is not permitted to make direct marketing calls to corporate subscribers who have either: (i) previously objected to such calls; or (ii) are listed on the Telephone Preference Service.

Exemptions and other issues

Calls can be made to a subscriber on the Telephone Preference Service if they have consented to receiving such calls. The recipient should be told the name of the person responsible for the direct marketing call and, on request, an address or telephone number where he can be reached free of charge. When making a direct marketing call you must either not hide the calling number or present a number where you can be contacted.

Additional restrictions apply to marketing calls made by claims management companies or in relation to pension schemes.

Directors and other officers can be fined in certain cases where a breach of these rules arises from their consent, connivance or neglect.

 

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