Living in the 21st Century it is increasingly easy for individuals to start their own businesses, especially during the pandemic new businesses have risen to around 407,510 new businesses were formed during this period (according to SKY news https://news.sky.com/story/covid-19-record-number-of-new-businesses-predicted-as-uk-comes-out-of-coronavirus-lockdown-12236841). However when it comes to marketing and advertising for your brand there are a few key points which need to be considered.

The first being what sort of platform are you going to use to build your website?

It is common and only natural to see an advertisement of a company on the TV or see an advert online which uses fancy advertising with offices around the world. However, often the knee jerk reaction is ‘this must be a good company, look at how well advertised they are’ and therefore you make the decision to build your platform using their platform and tools. This is not always the case. The most important aspect when looking to build an online presence is the legal and regulatory compliance of the platform. Read through their privacy policy in detail; read through their terms and conditions and then decide whether you think that they are in fact compliant – you would be surprised as to what the platforms that  spend money on advertising on the TV and online hide in regards to their compliance, or potentially lack of it. Recently we have been working for a client which has been using one of the highly advertised sites as his website platform and going through his website compliance documents raised too many red flags to ignore – hence the inspiration for this post!

In this case there were a few major red flags.

• Their storage limitation (data retention)
• Their data minimisation
• Their server base location

Starting with the storage limitation of our client’s website provider; the Information Commissioner’s Office (‘ICO’) directs companies and organisations:

• You must not keep personal data for longer than you need it.
• You need to think about – and be able to justify – how long you keep personal data. This will depend on your purposes for holding the data.
• You need a policy setting standard retention periods wherever possible, to comply with documentation requirements.
• You should also periodically review the data you hold, and erase or anonymise it when you no longer need it.
• You must carefully consider any challenges to your retention of data. Individuals have a right to erasure if you no longer need the data.
• You can keep personal data for longer if you are only keeping it for public interest archiving, scientific or historical research, or statistical purposes.

The UK General Data Protection Regulation (‘GDPR’) does not dictate how long you should keep personal data for. It is up to the company or organisation to justify their retention of such data, based on their purposes for processing it. Personal data for many companies and organisations are kept for a maximum of 6 years – this is because UK statutory limitation – the period of time for which a contract could be subject to a legal dispute resulting in a court claim – is 6 years. After 6 years a transaction or contract cannot be the subject for a court case and by default many corporations destroy all such records after 6 years.

Ensuring that you erase or anonymise personal data when you no longer need it will reduce the risk that it becomes irrelevant, excessive, inaccurate or out of date. Apart from helping you to comply with the data minimisation and accuracy principles, this also reduces the risk that you will use such data in error – to the detriment of all concerned.

But why is storage limitation so important?

Personal data held for too long will, by definition, be unnecessary. You are unlikely to have a lawful basis for retention (e.g. 6 year statutory Limitation as outlined above). From a more practical perspective, it is inefficient to hold more personal data than you need, and there may be unnecessary costs associated with storage and security, either in hard copy or online. Remember that you must also respond to subject access requests for any personal data you hold. This may be more difficult if you are holding old data for longer than you need. Good practice around storage limitation – with clear policies on retention periods and erasure – is also likely to reduce the burden of dealing with queries about retention and individual requests for erasure.

Data minimisation is also covered under UK GDPR. The ICO directs companies and organisations, when processing data to ensure that the data is processed in way that are deemed:

• adequate – sufficient to properly fulfil your stated purpose;
• relevant – has a rational link to that purpose; and
• limited to what is necessary – you do not hold more than you need for that purpose.

The idea of minimisation is based around companies and organisations only collecting data that they need, and is necessary. The website provider our client was using was ‘hoovering’ up information which why did not necessarily need – taking information from it’s users users. Minimisation is important because orgnisations should not be collecting more data than they need for the specific task the personal data is collected for.

Finally the server location through our client’s website provider is vague. It is important for companies and organisations to know where your data is being stored, whether the data is encrypted and if so to what standard (e.g. SSL 128- bit, TSL 256-bit). If your data is hosted with a cloud provider where the physical servers are not within the EU, then you can’t use that service unless the appropriate GDPR compliant international transfer conditions are met (adequacy, a data transfer agreement containing standard contractual clauses or binding corporate rules). These conditions are complex, hence it is helpful to know where the personal data, for which your organisation is responsible, is actually being stored. Any provider who either cannot confirm this simple information, or obfuscates when the question is asked, should be avoided. Even if they do have lots of shiny offices and a slick TV advertising campaign.