With the General Data Protection Regulation (GDPR) recently passing its two-year anniversary of coming into force, there has been a lot written on what progress has been made when it comes to the protection of individuals’ personal data against misuse by companies. The Information Commissioner’s Office (ICO) has certainly come under significant scrutiny and pressure for its track record when it comes to enforcing GDPR so far.



At the time of writing this blog, there has only been one monetary penalty enforced under GDPR – Doorstep Dispensaree Limited for £275,000. This is despite receiving 38,514 complaints under GDPR in just the last year. The two largest headline cases have been Marriott and British Airway, where the ICO issued “Intents to Fine” of £99M and £183M respectively - ICO British Airways Notification, ICO Marriott Notification. Both fines were supposed to be enforced within 6 months of the intent notices being served, but a year on and both fines have been delayed with an expectation that they will be significantly reduced. Indeed, BA’s owners, IAG, have set aside a “Settlement provision” of only €22M for the fine in their latest financial report; a 90% decrease on the actual liability - IAG Six Month Interim Management Report to 30th June 2020

 

 

The ICO gave itself an “Adequate” rating in an internal audit. However, it is clear that the ICO is not only failing to uphold action on major companies, but also failing to address the more typical infringements by smaller companies. The internal audit cites the ICO’s “relaxed enforcement” stance during the Covid-19 crisis as a factor in their underperformance, but this does not explain the previous 18 months in which GDPR should have been regulated more robustly.

 It is clear that the GDPR gives regulators significant regulatory “teeth” and should have ushered in a new era of data privacy. Putting Covid-19 aside for a moment, there may be a couple of other major factors which result in the ICO’s lack of success.

 Firstly, is the scope of the ICO’s responsibilities too broad? They are currently accountable for:

  • Data Protection (the GDPR)
  • Freedom of Information Act
  • Privacy and Electronic Communications Regulations (PECR)
  • Environmental Information Regulations
  • INSPIRE Regulations
  • The re-use of Public Sector Information Regulations

 Secondly, resourcing and funding are not in line with the challenge the ICO face when aiming to enforce GDPR.

 The internal ICO audit highlighted “Managing the ICO’s reputation” as one of the primary risks for the organisation. Currently citizens believe the ICO lacks teeth and is too biased towards the interests of business. Businesses believe the ICO is poor at providing proactive support and clear guidance and IT industry commentators such as Wired, report that the ICO has “given up” on enforcement all together and is using Covid-19 as a cover.

 It is clear, even to the ICO themselves, that they need to improve on effectively policing GDPR. Standing strong on the Marriott and BA fines would be a good start, but there has to be a broader strategy and plan if confidence in data privacy protection is to be ensured in the UK. An American consultant has reportedly been brought into the ICO to consider their powers in light of a Parliamentary enquiry last year that concluded - The GDPR should offer a substantial level of protection for people’s personal data, but this does not seem to have materialised in practice. The Government should review whether there are adequate measures in place to enforce the GDPR and DPA in relation to how internet companies are using personal data, including consideration of whether the ICO has the resources necessary to act as an effective regulator (Paragraph 105) - Parliamentary Enquiry into Data Protection and ICO enforcement

 

The General Data Protection Regulation (GDPR) came into force in May 2018 and in the subsequent 2 years, UK companies have not only had to ensure they are compliant with GDPR, but also prepare for Brexit and more recently adapt their businesses to working under Covid-19 restrictions.


It’s fair to say that many organisations of all sizes were not ready to manage their obligations under GDPR by the May 24th 2018 deadline and whilst most companies reviewed their data processing policies and business processes, there was still a huge challenge in terms of identifying where personally identifiable information (PII) resided in their systems. Which limited the effectiveness of the compliance measures they were trying to establish. Further-more a majority of companies still struggle to track and protect PII on an on-going basis.

One major barrier to gaining visibility to sensitive data is that there are a myriad of IT and business systems with their own individual data stores. Also, many users transfer data to their local machines from secure corporate data stores, often with the best intentions of working efficiently offline or from remote locations such as their homes.

Another major challenge is that the Data Owners and Data Protection Officer (DPO) are typically business executives rather than IT and whilst they are the people who need to ask questions of what Data is being held and where, for example in response to a data Subject Access Request (DSAR), they are wholly reliant on IT staff to provide the results. This is costly and time-consuming for both the business stakeholders and the IT department. It also significantly hampers business agility, which has been crucial for companies in the current Covid-19 crisis where businesses had to develop new business practices to continue trading.

Understanding with confidence where the companies’ sensitive data is stored and who can access it, is the foundation and starting point for an effective Data Protection capability. When adopting a maturity model as below, you cannot progress beyond level 1 without completing the initial discovery and then implementing an ongoing tracking and search capability.

 

Once a company knows where their data resides and can ensure it is appropriately controlled and protected, they will gain significant business benefits beyond just GDPR compliance.

  • It greatly reduces costs associated with managing data protection and management.
  • It saves time and limits the resource required to gain visibility and control over data.
  • It increases business agility through both the time-savings and the reduction of risk in implementing new business models and services.
  • Improves customer service and brand reputation through rapid responsiveness to DSARs and demonstrable care and respect for customer’s data and privacy.

 

 

Our customers include a number of the UK’s leading pub and restaurant management companies and we have been discussing with them how they can most effectively support the UK’s Government’s data retention requirements for Covid-19 track and trace - Government Track and Trace Data Retention Guidance.

The Government stipulates that you should “keep a temporary record of your customers and visitors for 21 days, in a way that is manageable for your organisation”. This may be a simple requirement for single venue pubs and restaurants, but how do you ensure this data is appropriately stored, protected and deleted when you have 100’s of establishments across the country (and beyond)? Given this type of personal data is covered by the General Data Privacy Regulation (GDPR) and the implications of mismanaging this data is significant.

I thought it would be useful to share some of the considerations and measures being taken to ensure the data is effectively managed.

There are already many instances of misuse of the track and trace data either through employee ignorance of the privacy regulations, or outright wilful abuse. Whether its companies using the data for marketing purposes, or serving staff personally contacting female customers through their contact details, there needs to be better control of this data.


It is important to remember that you not only have to gain consent to store data, but also state the specific purpose it will be used. The tweet above illustrates a pretty minor infringement, but we need the ICO to demonstrate a less passive and ineffectual approach to building awareness and policing businesses’ obligations under GDPR.

The ideal approach to meeting this Government requirement is for the data to be stored and managed centrally. This will enable appropriate encryption, access control and automated deletion processes. Whilst there is nothing that says the data can’t be held in a local paper-based bookings calendar (as traditionally has been the case for smaller businesses), deleting and restricting access to the data is difficult in these circumstances. Indeed, a corporate Data Protection Officer (DPO) would find it difficult to ensure compliance with GDPR.

The Government’s requirement for companies to store this data should be seen as an opportunity rather than an overhead. Leveraging strong data privacy practices as a company differentiator and demonstrating transparency with your customers on how their data is treated will be a great selling point at a time when the trading environment is extremely challenging.

Our customers, just by the very nature that they use eSpyder to manage their GDPR compliance are among the very best companies in the UK for effectively managing personal data and minimising the cost of managing and reporting on compliance. Incorporating this temporary data retention requirement into their on-going operations is easier than for a majority of companies. That said now is the ideal time to get your Data Privacy operations fit for the most challenging trading environment in living memory.

Agility is going to be the key to survival and this albeit minor requirement, highlights how effectively managing the customer data you hold will be a critical success factor. Managing personal data can be time-consuming, costly and frankly, not a core business activity. Reducing those costs and resource commitments whilst enhancing your company’s reputation with customers will greatly benefit the company’s business growth and profitability.
I would love to hear your thoughts or discuss your company’s situation. Please feel free to start reach out to me at Chat .