Data protection legislation sets out rules and standards for the use and handling (‘processing’) of information (‘personal data’) about living identifiable individuals (‘data subjects’) by organisations (‘data controllers’). It is based around the notions of principles, rights and accountability obligations.
The law applies to organisations in all sectors, both public and private. It applies to all electronic records as well as many paper records. It doesn’t apply to anonymous information or to information about the deceased.
Since 25 May 2018, the legislation in the UK has been the EU General Data Protection Regulation (GDPR), coupled with the UK Data Protection Act 2018 (DPA 2018) that supplements the GDPR in specific ways. These two pieces of legislation replaced the Data Protection Act 1998 (DPA 1998) and the numerous Statutory Instruments issued pursuant to it. There is also supplementary data protection legislation covering specific topics, such as direct marketing. The legislation is regulated in the UK by the Information Commissioner’s Office (ICO) as well as the courts.
Data controllers processing personal data must follow – and be able to demonstrate that they are following – the data protection principles.
Under the GDPR, there are six principles. Personal data must be processed following these principles so that the data are:
- Processed fairly, lawfully and transparently – and only if there is a valid ‘legal basis’ for doing so
- Processed only for specified, explicit and legitimate purposes
- Adequate, relevant and limited
- Accurate (and rectified if inaccurate)
- Not kept for longer than necessary
- Processed securely – to preserve the confidentiality, integrity and availability of the personal data
Under the DPA 1998 there were eight principles but two of these (about the rights of data subjects and transfers of personal data outside the European Economic Area) are covered in different ways in the GDPR. Depending on the context, there are full or partial exemptions from the principles when processing personal data for specific purposes, including academic research.
Under the GDPR, data subjects are given various rights, which are free to exercise:
- The right to be informed of how their personal data are being used – this right is usually fulfilled by the provision of ‘privacy notices‘ as described below
- The right of access to their personal data – accessing personal data in this way is usually known as making a ‘subject access request‘
- The right to have their inaccurate personal data rectified
- The right to have their personal data erased where appropriate – known as the right to be forgotten
- The right to restrict the processing of their personal data pending its verification or correction
- The right to receive copies of their personal data in a machine-readable and commonly-used format – known as the right to data portability
- The right to object: to processing (including profiling) of their personal data that proceeds under particular legal bases; to direct marketing; and to processing of their data for research purposes where that research is not in the public interest
- The right not to be subject to a decision based solely on automated decision-making using their personal data
A response to a rights request needs to be sent within one month. However, nearly all of these rights are qualified in various ways and there are numerous specific exemptions both in the GDPR and in the DPA 2018 (for example, nearly all the rights do not apply if the personal data are being processed solely in an academic research context). These rights build upon and strengthen rights given to data subjects under the DPA 1998.
Under the GDPR, JBSEEL (like most UK data controllers) is required to pay an annual fee to the ICO and to be included in its register of fee payers. JBSEEL’s register entry number is Z9914531. The University of Cambridge and Cambridge Colleges of the University are separate legal entities and data controllers for the purposes of data protection legislation.
Data protection legislation imposes certain accountability obligations on all data controllers which include:
- Implementing policies, procedures, processes and training to promote ‘data protection by design and by default’
- Having appropriate contracts in place when sharing personal data – especially when outsourcing functions that involve the processing of personal data and/or transferring the personal data outside the EEA
- Maintaining records of the data processing that is carried out across the organisation
- Documenting and reporting personal data breaches both to the ICO and the affected data subjects
One of JBSEEL’s most important accountability obligations under data protection legislation concerns personal data breaches – that is, personal data held by JBSEEL is lost, stolen, inadvertently disclosed to an external party, or accidentally published. If a personal data breach occurs, this should be reported immediately to the Data Protection Officer (firstname.lastname@example.org), who will then inform Cambridge Judge Business School’s Compliance Team (email@example.com).
Some types of personal data breach have to reported to the ICO and the affected data subjects within short timeframes, so recognising and reporting them internally is crucial.
An important aspect of complying with data protection legislation is being open and transparent with individuals about how their personal data will be used. The supply of this information – through documents variously known as ‘privacy notices’, ‘data protection statements’, ‘data collection notices’, ‘privacy policies’ and numerous other interchangeable terms – takes places in numerous targeted ways depending on the context of the interaction with the individual. JBSEEL’s core privacy notices are available below:
Data protection and Brexit
Like all areas of law derived in part from the European Union, data protection legislation will be subject to changes following the UK’s departure from the EU.
During the transition period (i.e. 1 February-31 December 2020, unless extended), there will be no changes at all. The GDPR (as supplemented by the DPA 2018 and various other laws) will continue to apply in full while long-term data protection arrangements are negotiated.
After the transition period (i.e. from 1 January 2021, unless the transition period is extended), the UK Government has made it clear that all the substantive provisions of the GDPR (as supplemented by the DPA 2018 and various other laws) about principles, rights and accountability obligations will continue to apply in the UK regardless of the outcome of the negotiations.
However, if the negotiations do not lead to a long-term arrangement that covers data protection matters, it is possible that a ‘no deal’ scenario will re-emerge. Under this, the main practical change for JBSEEL would concern transfers of personal data from organisations and businesses based within the European Economic Area (i.e. the EU countries plus Iceland, Liechtenstein and Norway) to JBSEEL. (Transfers of personal data from JBSEEL to organisations/businesses based in the EEA and beyond would not be affected except in very limited circumstances. Transfers of personal data from EEA-based individuals to JBSEEL would also not be affected.) In order for such transfers lawfully to continue, it would be necessary for the EEA-based organisation/business to assure itself that the personal data it transfers will be ‘adequately’ protected by JBSEEL (as we would be an organisation based in a ‘third country’ outside the EEA that does not have an ‘adequacy’ finding from the European Commission). In essence, the current provisions on transfers of personal data outside the EEA would apply but ‘in reverse’ – that is, with JBSEEL as the recipient rather than the sender. Unless a ‘derogation’ (exception) applies – which would occur relatively rarely – the simplest and safest way for the EEA-based organisation/business to assure itself of the adequate protection of the personal data would be for it to enter into a contract/contract variation with JBSEEL on the basis of the European Commission’s standard contractual clauses for transfers, the use of which is explained on the relevant guidance page of the University’s Information Compliance website. Further guidance has been issued by the UK Government, the ICO and the European Data Protection Board on data protection in the event of a no-deal Brexit.