According to statistics released by the European Commission earlier in 2019, the term “GDPR” amassed more Google searches than either Beyoncé or Kim Kardashian during the month of May 2018.
Now that “GDPR” has become a household term, what have we learnt in the 12 months since the introduction of the GDPR?
1. Fines and complaints
The significant penalties that could be imposed under the new GDPR regime (the higher of €20m or 4% of worldwide turnover) grabbed the headlines but regulators have been slow on the uptake.
In January 2019, the French data protection authority (CNIL) imposed a fine of €50 million on Google for lack of transparency, inadequate information and lack of valid consent in relation to personalisation of adverts.
Beyond that, the largest fine to date was a fine of 400,000 euros imposed on a Portuguese hospital for failure to manage who had access to sensitive patient data. We have also seen a data processor in Poland being fined €220,000 for failures in respect of its information obligations.
The ICO has also imposed a number of fines for failure to pay the data protection fee under the new regime. In a recent appeal against such a fine, the Information Tribunal made it clear that the fact that the relevant person was on holiday did not mitigate against the failure to pay.
Other data protection fines announced in recent months have been decided under the 1998 Data Protection Act, however the ICO has indicated that the UK’s first significant fine under the GDPR will be imposed in the coming weeks.
2. Enforcement priorities
The ICO recently indicated that its enforcement priorities include examining whether the online advertising industry is transparent and fair, and looking at whether companies are following the GDPR's strengthened privacy protections for children. Elizabeth Denham, the UK’s Information Commissioner, has also indicated an interest in reviewing public sector data sharing.
These areas of focus do not mean that other businesses can ignore GDPR compliance! While the ICO has had to address some under-staffing issues in the aftermath of the implementation of GDPR, we understand that it has recruited more staff and is in a better position to be proactive.
3. Data breaches
Mandatory data breach notification under the GDPR has meant that the number of data breaches being reported to regulators has risen exponentially. The ICO received 4,056 data breach reports in the 3-month period 1 July to 30 September 2018 (the most recent figures available), and figures from the European Commission suggest that more than 95,000 breaches were reported to data protection authorities across Europe by the end of 2018.
We notice that clients find it difficult to decide whether a breach is reportable and tend to over-report rather than analysing whether a report to the ICO is strictly required.
4. Contractual requirements
Getting houses in order with suppliers and data processors was the item that fell to the back of the queue in terms of preparing for the GDPR. Many data controllers focussed on privacy notices and processing records in the run-up to GDPR last year and are only now reviewing supply chain arrangements to ensure that the contracts comply with GDPR.
5. The rise - and rise - of the informed citizen
Few people take the time to read privacy notices or to try to understand what use is being made of their data – however, they do understand that they have enhanced rights.
Complaints to the ICO increased 200% in the first two months following the introduction of the GDPR. According to the European Commission, the most frequent areas for complaints from individuals were telemarketing, promotional emails and CCTV surveillance.
The ICO has also just launched its “Be Data Aware” campaign, helping people to understand how their information might be used in an online context.
6. Claims by individuals
In Wm Morrison Supermarkets Plc v Various Claimants (a case under the Data Protection Act 1998), the Court of Appeal upheld the High Court decision against Morrisons to the effect that, although Morrisons was not directly liable for the data protection breach, it was vicariously liable for the actions of its rogue employee. The Court of Appeal commented that the solution for employers is to be properly insured. This important case has now been appealed to the Supreme Court.
Separately, in Lloyd v Google the High Court made it clear that compensation claims are based on damage suffered – they are not about censuring the data controller. The Court did not allow the representative action in this case (the class was envisaged to be several million potential claimants) because not all of the individuals would have suffered the same damage.
As the GDPR makes individual and class actions easier, the decisions in both of these cases will be crucial to how this develops in the UK.
7. Increase in data subject access requests (DSARs)
Generally it is difficult to obtain information about numbers of subject access requests but it would appear from anecdotal information that the number of subject access requests is on the rise since the introduction of the GDPR.
Our own experience is that clients are receiving more DSARs than they did under the old regime, and that responding to DSARs is taking up significant time and resource. Individuals with a grievance against a company are using DSARs as an additional line of attack and commercial DSAR aggregators are now entering the marketplace, allowing an individual to send a number of automated DSARs to a range of organisations.
8. The future
Although the GDPR has been in force for a year now, we are still awaiting further guidance from the ICO. A number of key ICO guides are still to be developed – e.g. the updated Direct Marketing Code of Practice and DSARs Guidance – as well as new ones such as that on Age Appropriate Design. Similarly, the European Data Protection Board (the body of European Regulators) continues to issue guidance that is shaping how privacy practitioners interpret the GDPR.
The E-Privacy Regulation – the update to the current E-Privacy Directive – remains under discussion so, at present, we have two different fine regimes depending on the type of offence.
9. EU and Brexit
While the Data Protection Act 2018 was the UK’s attempt to ensure that data protection was “Brexit-proof”, a number of uncertainties remain around the UK’s status following its departure from the EU. This will be heightened if there is a “no-deal Brexit”.
UK-based businesses that process personal data of EEA citizens will need to consider appointing an EU Representative and reviewing data import and export arrangements.
Under GDPR, businesses outside the EEA processing EEA personal data should already have appointed an EU representative.
10. What next for you?
- Review your privacy policies – internal and external – do they still cover all that you do?
- Implement supply chain contract remediation (if not already done)
- Review your data breaches log – does your breach notification process work? What lessons can be learned and actions taken on the basis of breaches to date?
- Review processes for dealing with DSARs – are they efficient and are your responses legally compliant?
- Ensure your GDPR compliance records are up to date – processing, breaches and DSARs registers in particular
- Check that you have properly registered and paid the right fee to the ICO for any subsidiaries
- Take action if you need to appoint an EU Representative.
If you would like help with any of these issues, our team of data privacy lawyers can support you. We can also arrange EU representative services based in Ireland.