ICO

by Laura Spencer Laura Spencer No Comments

USING WHATSAPP FOR BUSINESS PURPOSES? YOU REALLY SHOULDN’T BE…

The Information Commissioner’s Office (‘ICO’) has called for a government review into the systemic risks and areas for improvement around the use of private correspondence channels – including private email, WhatsApp and other similar messaging apps. This comes after the announcement of an enquiry into the messaging systems used by government throughout the pandemic, earlier this year.  The ICO report details a yearlong investigation, launched in 2021 by Commissioner Elizabeth Denham, into the use of these channels by Ministers and officials at the Department of Health and Social Care (‘DHSC’) during the pandemic.

The investigation found that the lack of clear controls and the rapid increase in the use of messaging apps and technologies – such as WhatsApp – had the potential to lead to important information around the government’s response to the pandemic being lost or insecurely handled.

Action Taken:

  • The ICO has now issued DHSC with a practice recommendation ordering the department to improve its management of FOI requests and address inconsistencies in its existing FOI guidance. This will ensure FOI requests are better managed, particularly in relation to any material created or contained in personal accounts.
  • A reprimand has also been issues
  • To make sure wider lessons are learnt, the ICO is also calling for the government to set up a separate review into the use of these channels and how the benefits of new technologies, including private messaging services, can be realised whilst ensuring data protection and transparency requirements are met.

This is a particularly important story when we think about WhatsApp. If you are a regular on our podcast or a regular newsletter reader, at Digital Law we regularly mention WhatsApp and the dangers of using this platform for business related purposes. This year alone, we have discussed multiple stories, including one from the MOD, informing service personnel to use alternative messaging apps such as Signal due to WhatsApp’s security. This is because while the app is ‘encrypted’, due to the fact that the messages are stored on the cloud, this makes it more accessible for hackers. Alternative messaging apps such as Signal are more secure because no messages are stored on the cloud, rather they are stored on the device themselves, effectively then the only way to get the messages would be to take the device itself.

Finally, for the avoidance of all doubt, this is not a new policy. You should not be using WhatsApp for business purposes. Especially considering highly regulated sectors such as law, finance and government. Highly regulated sectors, in this particular case, relating to the government, really highlights why, for a regulated sector, using unsecure platforms can be a real problem. It also highlights the stance that the ICO are likely to take if you, as an organisation, have a breach and you are using WhatsApp or other similar messaging platforms such as Telegram.

For more information as well as advice and guidance, please do not hesitate to contact us at admin@ansonevaluate.com.

by Laura Spencer Laura Spencer No Comments

GDPR v PECR: The ICO Multi-Million Pound Enforcement

Since May 2021, the Information Commissioner’s Office (‘ICO’) have issued 37 fines for a total of £3.04 million to companies for nuisance calls and messages.

These fines fall under the Privacy and Electronic Communications Regulations (‘PECR’) and not the General Data Protection Regulation (‘GDPR’). This is an important distinction when we are thinking about ICO fines, due to the fact that the ICO typically focus on PECR fines over GDPR. Looking at the amount of fines that will have had to have been given out, the figures would suggest that it is mainly mid-tier SME businesses that have been subject to these fines.

The UK government, outlined in the new Data Reform Bill proposal, have proposed an increase in fines to organisations that breach PECR, with the aim of preventing companies contacting people for marketing purposes without consent. It proposes that the ICO’s power to fine companies will increase from the current maximum of £500,000 to up to four per cent global turnover or £17.5 million, whichever is greater.

Why is this important?

If you are a business who regularly calls customers and potential customers, you may want to consider your marketing strategy and how this may be affected by the change. Similarly, this is a testament to the increased powers that the ICO will have under the proposed new legislation.

As it stands, the ICO can only penalise organisations for calls that are answered however, legislation, outlined in the Data Reform Bill, will allow them to take action over high volumes of unanswered calls. However, a key thing to mention here is the fact that these calls do need to be reported before the ICO can take action and therefore, while the fine increase is a step in the right direction, arguably it does not do enough to protect consumers.

Experience and thought leadership in Data Protection
by Laura Spencer Laura Spencer No Comments

Experian Discredited: ICO Investigation

Picture this – you are looking to buy your first house – you get your credit score checked by Experian  – you have heard of them, maybe seen some advertising on TV,  and so you go ahead. Little would you think about what Experian may be doing with your data without your knowledge/consent because there are regulations that they must follow – surely?

Experian and other credit reference agencies collect and process vast amounts of personal data in order to carry out credit checks as well as parts of their other services; ‘We gather, analyse, combine and process it to help people and organisations achieve their goals’. Yet does this mean that you as a consumer are intending for your personal information to be traded, enriched and enhanced without your knowledge or consent for marketing purposes?

The answer, more often than not, is no.

You most likely do not want the company sharing your information with third parties purely for their own marketing gain, even more so without your consent to boot.

This processing of your personal data by Experian resulted in products which were used by commercial organisations such as political parties or charities to find new customers, identify the people most likely to be able to afford goods and services, and build profiles about people.  The UK Data Protection Regulator , the Information Commissioners Office (“ICO”) found that significant ‘invisible’ processing took place, likely affecting millions of adults in the UK. ‘Invisible’ because the individual data subject is not aware that the organisation is collecting and using their personal data. This is against data protection law.

The Data Protection Act (DPA) and General Data Protection Regulation (GDPR) initiated a new approach to personal data and the transference of such data. It had 7 main aims/principles

  1. Lawfulness, fairness and transparency
  2. Purpose limitation
  3. Data minimisation
  4. Accuracy
  5. Storage limitation
  6. Integrity and confidentiality (security)
  7. Accountability

These aimed to guide and regulate organisations to allow for individuals to have greater access to their data and to be able to understand what companies could and could not do with it.

Experian, failed to be transparent – outlined under Article 5 GDPR; this is because they were using ‘invisible’ processing of personal data and therefore were not being clear to data subjects, as to what their personal data was really being used for. g. The regulator found that personal data provided to Experian, in order for them to provide their statutory credit referencing function, was being used in limited ways for marketing purposes.

The ICO ordered Experian to make fundamental changes to how it handles people’s personal data within its direct marketing services. Experian did not accept that they were required to make the changes set out by the ICO, and as such were not prepared to issue privacy information directly to individuals nor cease the use of credit reference data for direct marketing purposes. As a result, Experian has been given an enforcement notice compelling it to make changes within nine months or risk further action. This could include a fine of up to £20m or 4% of the organisation’s total annual worldwide turnover. The enforcement notice followed a two-year investigation by the ICO into how Experian used personal data within their data brokering businesses for direct marketing purposes. The ICO’s notice requires Experian to inform people that it holds their personal data and how it is using or intends to use it for marketing purposes. Experian has until July 2021 to do this subject to any appeal. The ICO also requires Experian to stop using personal data derived from the credit referencing side of its business by January 2021, which it does currently for limited direct marketing purposes. In the enforcement notice, the ICO states that people have no choice about whether their data is shared with Experian for credit referencing purposes and that Experian’s processing of this data for marketing purposes is unexpected.

At the same time that the ICO were investigating Experian, other credit reference agencies (CRA) were being investigated for similar reasons, only along with transparency some of the CRAs were also using profiling to generate new or previously unknown information about people, which is often privacy invasive. It is not revealed in the report as to whether Experian were also using profiling within their processing. This highlights the potential need for further regulating of these providers to ensure that there is compliance at all times in regards to both UK GDPR as well as the UK Data Protection Act (DPA). Similarly investigations such as this open consumer eyes as to what goes on ‘behind closed doors’ of companies in regards to their data and how it is used. Outgoing UK Information Commissioner Elizabeth Denham has remarked: “The data broking sector is a complex ecosystem where information appears to be traded widely, without consideration for transparency, giving millions of adults in the UK little or no choice or control over their personal data. The lack of transparency and lack of lawful bases combined with the intrusive nature of the profiling has resulted in a serious breach of individuals’ information rights.”

It is safe to say that certain reports and investigations that your data is being used for purposes that you did not consent to will have had an impact on the company itself – with its reputation severely tarnished.

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