ICO Legal Advice
What is ICO?
The ICO (Information Commissioner’s Office) is the UK’s independent body set up to uphold information rights.
The GDPR (General Data Protection Regulations) which came into force in May 2018, creates new and higher standards of compliance than applied previously for organisations collecting and using customer data.
Whenever you collect and use identifiable personal data about customers (like name, email, address and preferences) you need to stay compliant with the law.
If you don’t comply, you can be fined by the regulator (the ICO) – up to 20 million Euros, or 4% of your turnover. Or, even more worryingly, the ICO can issue a ‘Stop Now’ order, which prevents you from collecting or using personal data at all, either permanently or until you have complied with their requirements.
How can our lawyers help?
We understand that GDPR compliance can seem overwhelming – with all those new rules and ongoing processes to comply with. Every business is unique so a one-size approach doesn’t work for everybody. We will work with you speedily and affordably to understand what your business needs and agree on a pathway to compliance.
Our expert service includes:
- Legal advice on what GDPR means operationally for your organisation
- A GDPR health check for your business showing you what changes you need to make and giving you an action plan
- Identifying whether you are a ‘Data Controller’ (who is in charge of deciding what data is to be collected, how it is to be collected, and the purposes for which it is to be used) or whether you are a ‘Data Processor’ (who analyses and processes the data on behalf of a Controller). Different obligations apply to each role.
- Helping you set up contracts between Data Processors and Data Controllers
- Reviewing and drafting employment contracts and providing HR advice related to GDPR
- Advice on handling Data Subject Access Requests (where individuals exercise their legal right to know or change the data you hold about them)
- Advice on dealing with suspected breaches of GDPR by your organisation in a compliant way (you can make things much worse if you get this bit wrong)
- Advice on how to gain compliant consent from customers to collect and use their data for purposes which are compliant with GDPR
Send us your enquiry and receive a free no-obligation 15 minute legal phone consultation with one of our GDPR lawyers.
What are the GDPR requirements?
The GDPR requires organisations who process personal information (known as “personal data”) relating others to keep that data safe, and to only process the data if they have lawful grounds to do so.
Who will GDPR apply to?
The GDPR applies to all organisations (which includes sole traders, charities, partnerships and limited companies) who have a branch in an EU member state or if the organisation is based outside the EU, then if that organisation either “processes” personal data in the European Union or if customer, employees, users etc are based in the EU. “Processing” includes if the data is in transit, stored, or otherwise.
What are the GDPR requirements?
In summary, the GDPR obliges organisation who processes personal data to protect that personal data and only process it if they have lawful grounds to do so (including being transparent about what data is held and why and what is done with it, only processing the data for the purpose for which is was collected, only processing – collecting- the minimal amount of data needed for the lawful processing and making sure that the organisation has appropriate technical and organisational measures in place to protect .
Is GDPR part of the Data Protection Act 2018?
The GDPR is an EU wide piece of legislation that (once passed by the EU institutions) directly applies and is enforceable at national level. This means that the nation state (for example the UK) doesn’t need to introduce national legislation to bring the GDPR into force. This means that the rights protecting individuals which are set out in the GDPR (for example on subject access).
However the UK (and other member states) have passed supplementary national legislation (such as the Data Protection Act 2018) to deal with national issues such as additional powers for the state or the regulator (ICO in the UK) as well setting out the powers and responsibilities of the national regulator (such as the power to levy registration fees).
So the GDPR and the DPA2019 effectively sit along side each other.
What are individuals’ rights under GDPR?
Individuals have the right to know what organisations are doing with their personal information, who that information is shared with, how long it is stored for etc.
They also have various rights of access to that information including:
- Erasure (‘Right to be Forgotten’)
- Restriction of processing
- Portability (in a format to enable transfer)
- Object to processing
- Automated decision making, including profiling.
How do I get GDPR compliant?
There is no “one-size fits all” answer, and each organisation has to not only process personal data lawfully etc but they must also be accountable for the way that they process data (for example by keeping records of actions and decisions taken etc). Organisations can demonstrate that they are complaint by complying with the 6 GDPR Principles, by being “transparent” with individuals (the data subjects) and being accountable for that compliance.
The GDPR imposes many different obligations on organisations that includes the organisations having to demonstrate compliance with the GDPR’s requirements including:
- establishing and maintaining a comprehensive data protection compliance program;
- appointing individuals responsible for overall data protection matters (for example a Data Protection Officer:
- Rolling out policies and operations;
- Providing staff training on GDPR;
- Implementing appropriate technical and organizational measures (“TOMS”), for example carrying out Privacy Impact Assessments;
- determining and documenting a lawful basis for each instance of processing personal data (including satisfying any additional requirements if processing Sensitive or Special Personal Data)
- keeping records of data processing activities;
- being transparent with Data Subjects by providing them with information about the processing that is taking place with their Personal Data (including Privacy Notices);
- making sure that the rights of individuals are protected, for example following out Subject Access Requests in the timescales set;
- making sure that arrangements with joint controllers, data processors and international transfers of data comply with the minimum standards set out in the GDPR.
Supplementary legislation made along side the GDPR (The Data Protection (Charges and Information) Regulations 2018 ) provides that every organisation that processes personal information to pay a fee to ICO (unless exempt). This fee is between £35 and £2,900 per year (depending on size and turnover). Details of organisation published on public register (see https://ico.org.uk/for-organisations/data-protection-fee/). Failure to do so may result in a fixed penalty and ICO has started to issue fines for non payment of the fee to organisations across a range of sectors including business services, construction, finance, health and childcare.
What is GDPR trying to achieve?
GDPR is trying to achieve protection for individuals’ personal information. It is also trying to achieve minimum standards of protection for that information across the European Union.
What are the 6 Principles of GDPR?
The six principles governing the processing of personal data under Article 5(1) of the GDPR are:
1. Lawfulness, fairness, and transparency, which means that :
- there must be a lawful basis to process personal data and
- that, among other things, organisations must be open with individuals about the data held by them and what processing is carried out.
2. Purpose limitation, which means that:
- an organization should only collect personal data for specified, explicit, and legitimate purposes; and
- should not process the personal data in a manner that is incompatible with those purposes, except under limited circumstances.
3. Data minimization, which means that personal data should be:
- relevant; and
- limited to what is necessary for the purpose of processing.
4. Accuracy, which means that personal data must be:
- accurate and kept up-to-date; and
- corrected or deleted without delay when inaccurate.
5. Storage limitation, which requires that the organization keep personal data in identifiable form only for as long as necessary to fulfill the purposes the organization collected it for, subject to limited exceptions.
6. Integrity and confidentiality, which requires that the organization secure personal data by appropriate technical and organizational measures against unauthorized or unlawful processing, and against accidental loss, destruction, or damage.
Article 5 of the GDPR requires a data controller to both:
- Comply with the six principles when processing personal data (Article 5(1), GDPR); and
- Demonstrate that compliance with all six of the principles (Article 5(2), GDPR).
How long can data be kept under GDPR?
Personal information should be kept for no longer than it is needed. Organisations will need to be able to justify why (and how) they hold persona data and for how long.
Ideally organisations will implement a Data Retention Policy which set out standard retention period where possible. If data can be anonymised, it might be acceptable to keep that data for longer than usually appropriate but organisations should have carried out a data privacy impact assessment (a risk assessment) to assist them reaching the decision to retain data for the relevant period and to document how the organisation reached that decision.
What is GDPR replacing?
In the UK, the GDPR replaced the Data Protection Act 1998.
Do I have to be GDPR compliant?
Yes. All organisations (which includes sole traders, charities, partnerships and limited companies) who process personal data must comply.
If processing personal data is not a “core” part of business (integral to the business) and the activities does not create any risks for individuals’ personal data, then an organisation might be exempt from some of the GDPR obligations this must be viewed on a case by case basis.
Free GDPR Checklist
Complete our free online GDPR checklist to see where you could be at risk or have the potential to increase your business valuation.
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