UK GDPR Lawyers Guide to UK GDPR and DPA 2018 Compliance

The Essential Guide to UK Data Protection Laws By UK GDPR Lawyer

Welcome to our UK GDPR Lawyer’s guide on navigating compliance with UK GDPR and the Data Protection Act 2018. To comply with data protection laws in the UK, businesses must understand the provisions of the UK's General Data Protection Regulation (UK GDPR) and the Data Protection Act 2018 (DPA 2018) regarding the handling, storage, and processing of personal data.

The Relationship Between DPA 2018 and UK GDPR

The DPA 2018 supplements and refines the UK GDPR by introducing specifics that cater to national circumstances. This relationship is particularly evident in areas like lawful processing and individual rights.

While the UK GDPR outlines broad principles and rights, the DPA 2018 specifies how these should be interpreted in the UK's legal context. It helps tailor the application of GDPR principles to comply with existing UK legislation. In practice, this means ensuring that GDPR provisions align with UK public policy.

Moreover, the DPA 2018 facilitates smoother data flow within sectors that are vital to national interests. For businesses and organisations, a proper understanding of the interplay between these two laws ensures compliance and minimises the risk of legal infractions.

The following is a summary of some of the key differences and similarities between DPA 2018 and UK GDPR:

1. Core Principles: Both regulations emphasise individuals' rights to privacy, the requirement for transparency about data use, and the necessity for organisations to manage data responsibly.

2. Stronger Provisions in the DPA 2018: The UK DPA includes stricter rules regarding sensitive data, covering aspects like ethnic background, health, and criminal history.

3. Regulatory Oversight: The Information Commissioner’s Office (ICO) regulates data protection in the UK, conducting audits, monitoring compliance with both regulations, and enforcing legal actions when necessary.

4. Differences in Implementation:

  - The DPA allows exemptions for national security and crime-related data, which introduces variances in compliance.

  - It requires organisations to maintain specific documents concerning how they manage special categories of data.

  - The age of consent for data processing is 13 years in the UK DPA.

  - The UK DPA contains exceptions regarding data subject access requests under certain conditions.

5. Enforcement and Compliance: The ICO collaborates with European data protection authorities and provides guidance to promote best practices for data management and privacy.

In summary, while the UK DPA and UK GDPR share foundational principles, they have nuances that reflect the UK's legal context and priorities, particularly in terms of additional regulations and exceptions. By integrating the DPA 2018 with UK GDPR efforts, organisations can more effectively manage data protection challenges.

Expertise of Data Protection Solicitors and Privacy Lawyers

However, GDPR compliance is not merely a box-ticking exercise to ensure that business activities align with relevant regulations and legislation. It is about protecting the privacy of your customers and employees, as well as enhancing the security and safety of those with whom your business interacts, and safeguarding trust and social cohesion within the wider community.

But how does one navigate these regulations? How can you ensure that your practices align with the law?

This is where legal professionals, such as data protection solicitors and privacy lawyers, come in who understand the spirit behind the GDPR principles, including both the UK and EU GDPR, and can guide you through the processes to manage your risk of infractions. UKGDPR lawyers can help interpret the laws, advise on best practices, and represent you in disputes. They can also assist with specific issues, like requests for data erasure.

In this comprehensive guide, we'll delve into the intricacies of the UK GDPR and the Data Protection Act 2018. We'll explore their key principles, the roles of various legal professionals, and practical advice for compliance.

We'll also highlight the importance of consulting with specialised lawyers. Whether you're a business owner, a data protection officer, a compliance manager, or simply interested in understanding the UK's data protection laws, this guide should be useful.

Overview of UK GDPR and the Eight Individual Rights It Protects

The UK GDPR was introduced to harmonise data protection laws across the UK. Post-Brexit, it stands as the cornerstone of data privacy in Britain. It focuses on helping individuals maintain control over their personal data, even after companies, organisations, and government bodies have collected it. The regulation outlines eight crucial rights for individuals, including the right to access personal data and the right to erasure, commonly referred to as the "right to be forgotten."

There are eight individual rights that the GDPR protects, which are primarily defined in Chapter 3: Rights of the Data Subject.

These rights outline the protections and control individuals have over their personal data. The GDPR's main aim is to protect data subjects and uphold their rights. Chapter 3 explicitly states its commitment to European citizens and data subjects. 

Here's a breakdown of where the rights are found: 

Article 12: Right to be informed about data processing.

Article 15: Right of access to personal data.

Article 16: Right to rectification of inaccurate personal data.

Article 17: Right to erasure (right to be forgotten).

Article 18: Right to restrict processing of personal data.

Article 20: Right to data portability (transfer personal data).

Article 21: Right to object to processing of personal data.

Article 22: Right not to be subject to automated decision-making.

While other chapters may touch on specific aspects or implications of these rights, Chapter 3 is the central point of reference for understanding the core data subject rights under the GDPR. 

The Importance of Compliance and the Consequences of Non-Compliance with UK Data Protection Laws

Complying with UK data protection laws is not merely a legal obligation; it is a strategic imperative that can significantly impact a business's success. By demonstrating a commitment to protecting personal data, organisations build customer loyalty and trust—which can translate into competitive advantages in the marketplace. On the contrary, failing to adhere to these regulations can result in serious repercussions.

Severe Financial Penalties

Non-compliance can lead to severe financial penalties imposed by the Information Commissioner's Office (ICO), which has the authority to enforce data protection laws in the UK. Fines for breaches can be staggering, reaching up to £17.5 million or 4% of a company’s annual global turnover, whichever is greater. The Information Commissioner's Office (ICO) does consider the size and financial standing of a business when calculating fines for data protection breaches. While the maximum fines can be significant for large companies, smaller enterprises may face more minor penalties, and the ICO can also reduce fines in exceptional circumstances. The ICO has provided guidance on the policies and procedures for calculating the amount of a fine to be imposed on businesses on its website.

The ICO have a nine-step process in assessing how they calculate a fine:

1.    Assessment of seriousness considering relevant factors under section 155 DPA 2018.

2.    Assessment of degree of culpability of the organisation concerned.

3.    Determination of turnover.

4.    Calculation of an appropriate starting point.

5.    Consideration of relevant aggravating and mitigating features.

6.    Consideration of financial means.

7.    Assessment of economic impact.

8.    Assessment of effectiveness, proportionality and dissuasiveness.

9.    Early payment reduction.

For more information about how the ICO takes action for data protection infringements, see the ICO's Regulatory Action Policy (RAP).

Case Study – British Airways

British Airways was eventually fined £20 million ($26 million) by the Information Commissioner's Office (ICO) for a data breach that reportedly affected approximately 500,000 customers between June and September 2018. The breach occurred in 2018 and impacted both personal and credit card data. The fine was significantly smaller than the £183 million that the ICO initially stated it intended to impose back in 2019.

Key Points:

1. Cybersecurity Failures: BA failed to implement essential security measures, such as multi-factor authentication, and stored sensitive information in plain text, which is a violation of industry standards.

2. Response Timeline: Upon discovering the data breach, BA responded promptly. They contained the attack and notified affected parties, which the ICO cited as positive factors when determining the final fine.

3. Communication with Data Subjects: Effective communication after a data breach is critical. BA quickly informed both the ICO and affected customers, which can mitigate the consequences of a breach.

4. Support for Affected Individuals: BA provided dedicated support to those impacted, including reimbursement for financial losses and facilitating credit monitoring services.

5. Cooperation and Representation: BA engaged with the ICO throughout the investigation and presented representations that ultimately contributed to the reduction of the fine. Engaging with authorities can yield significant financial benefits.

6. Turnover and Impact Factors: While BA's global turnover was a critical metric for the fine calculation, representations regarding the impact of COVID-19 and other factors influenced the final penalty amount.

7. Legal Considerations: BA did not admit liability for the GDPR breach, likely to protect against ongoing civil litigation. Organisations must align their compliance strategies with legal defences.

Suggestions for Companies to Avoid ICO Fines:

- Prioritise Cybersecurity: Implement robust security measures to protect against unauthorised access and breaches.

- Act Swiftly: Have a clear incident response plan that allows for quick action when a breach occurs.

- Communicate Effectively: Maintain clear and timely communication with affected individuals post-breach.

- Engage with Authorities: Cooperate with regulatory bodies during investigations to potentially reduce penalties.

- Monitor Regulatory Changes: Stay updated with evolving industry expectations regarding data protection and incorporate them into compliance strategies.

By learning from the BA case, companies can enhance their data protection practices and mitigate risks of incurring significant fines from regulatory bodies like the ICO.

The ICO is empowered not only to impose monetary fines but also to issue enforcement notices and reprimands, mandating organisations to take corrective action. In severe cases, it can suspend an organisation's data processing activities, posing a further threat to business operations. Moreover, non-compliance can compromise data integrity, resulting in inaccurate or unreliable information that jeopardises both business operations and customer relationships.

In summary, the consequences of non-compliance with UK data protection laws are substantial. They encompass financial penalties, reputational harm, legal action, and potential operational disruptions. As the landscape of data protection continues to evolve, organisations must prioritise compliance to mitigate these risks and maintain their market standing.

When Does GDPR Not Apply?

Both the UK GDPR and DPA 2018 outline exemptions from certain rights and obligations in specific circumstances. Whether you can rely on an exemption often hinges on the reasons for processing personal data. 

DPA 2018 specifies exemptions in Schedules 2, 3 and 4 of the Act. These exemptions apply in situations where compliance with specific provisions of the UK GDPR or DPA 2018 is not feasible. For instance, Schedule 2 offers exemptions for processing personal data related to national security, crime, taxation, and research purposes. Schedule 3 addresses exemptions concerning social work and health data, while Schedule 4 pertains to exemptions for data processing by the media.  

Key Points About UK GDPR Exemptions

Impact of Exemptions:

Exemptions can affect various rights, including the right to be informed, the right of access, adherence to data protection principles, and other individual rights.

Purpose of Exemptions:

Exemptions are designed for specific situations where compliance with the GDPR may be impractical or could adversely affect the public interest.

Examples of Exemptions:

Exemptions apply in several areas, including: 

 - Crime, law enforcement, and public protection 

 - Government, parliamentary, and judicial functions 

 - Journalism, research, and archiving 

 - Health, social work, education, and child protection 

 - Finance, management, and negotiations 

 - References and examinations 

 - National security and defence 

Specific Exemptions

National Security and Defence:

S.26 DPA 2018 offers an exemption related to national security or defence, allowing specific data protection principles to be set aside.

Public Functions:

Exemptions exist for functions intended to protect the public or enable other organisations to carry out their responsibilities effectively.

Freedom of Information Act Exemptions:

The Freedom of Information Act includes its own set of exemptions that permit withholding information under specific circumstances.

What are the UKGDPR Guidelines?

The UK GDPR guidelines focus on protecting citizens' personal data when it is being processed or moved, and they establish seven key principles. The seven key principles of the UK GDPR are found in Chapter 2 – Principles - Article 5 of the UK GDPR. These principles are:

lawfulness, fairness and transparency; 

purpose limitation; 

data minimisation; 

accuracy; 

storage limitation; 

integrity and confidentiality; and

accountability. 

Additionally, in Chapter III UK GDPR – Rights of the Data Subject - the guidelines outline data subject rights, including the right to be informed, access, rectification, erasure, restrict processing, data portability, and objection. 

How a Data Protection Solicitor Can Help?

Case Study One: Interpreting UK GDPR guidelines for an International e-commerce Luxury Furniture Website.

Background

Our firm was approached by a fast-growing, bespoke e-commerce luxury furniture business facing challenges in its global expansion. False accusations were widely circulated on social media and news websites, prompting the company to seek assistance with international data transfer compliance, as well as online reputation management and content removal, in relation to UK GDPR compliance.

Objective

The goal was to conduct a risk assessment of the client’s data practices, identify areas for improvement, and develop a strategy for content removal that aligns with the key principles of the UK GDPR.

Risk Assessment Process

1. Data Collection: We reviewed the client’s processes for managing public interactions and data handling. 

2. Risk Areas Identified:

  - Transparency: Insufficient user information on data usage.

  - Purpose Limitation: Ambiguous reasons for data collection.

  - Data Minimisation: Excessive data collection beyond what's necessary.

  - Accuracy: Inefficient processes for correcting misinformation.

  - Storage Limitation: Lack of documentation on data retention periods.

  - Integrity and Confidentiality: Weak data protection measures.

  - Accountability: Inadequate compliance documentation.

Recommendations

We advised the client to:

1. Develop transparent data policies.

2. Limit data collection to what is essential.

3. Establish efficient rectification protocols.

4. Clearly define data retention policies.

5. Enhance data security measures.

6. Document practices to ensure compliance.

Implementation and Benefits

Following our recommendations, the client improved their data management practices, resulting in:

- Enhanced transparency and user trust.

- Successful removal of defamatory content, restoring their reputation.

- Clear confidence in GDPR compliance.

Case Study Two: GDPR Compliance for Small Online SaaS Tech Company

A small software-as-a-service (SaaS) AI company that owns and manages a growing gaming marketplace, integrating AI capabilities into the gaming experience with multiple revenue streams, approached us for advice on GDPR compliance, including addressing data breaches and navigating UK privacy laws.

The Importance of a UK GDPR Lawyer - Framework for Managing Data Protection: 

To ensure effective data protection, we advised that they adopt a comprehensive management framework that included:

Data Inventory: In collaboration with the client, we conducted an extensive audit to identify all personal data collected, processed, and stored. This audit revealed that they had customer data ranging from contact details to payment information.

- Data Protection Policies: We drafted robust privacy notices and internal policies that aligned with GDPR requirements, clearly outlining how user data would be handled.

- Staff Training: On our recommendation, the client implemented thorough training programs for employees to educate them about data protection principles and their legal responsibilities.

Drafting and Reviewing Contracts:

We worked diligently with the client’s management team to ensure that all contracts involving personal data processing met GDPR standards, focusing on: 

- Data Processing Agreements (DPAs): Every partnership with third-party service providers included clear clauses detailing data processing responsibilities, security measures, and protocols for breach notifications. 

- Liability Clauses: Contracts were revised to outline liabilities related to data breaches, ensuring that both parties understood their responsibilities.

Handling Data Breaches:

 When the client experienced a minor data breach due to a phishing attack, on our recommendation, they took immediate action as mandated by the GDPR:

 - Immediate Assessment: The team promptly assessed the severity and potential impact of the breach on its customers.

 - Notification: They promptly informed the Information Commissioner’s Office (ICO) within 72 hours since the breach could affect individuals' rights.

 - Communication with Affected Individuals: They notified those affected while providing guidance on protective measures they could take to secure their information.

 Representing Clients in Litigation:

Though the client successfully managed the breach, they were prepared for potential litigation through:

- Strategic Legal Advice: They engaged our firm on retainer to prepare for the possibility of claims, ensuring they understood their positions and rights.

Court Representation: Should litigation arise regarding any data protection-related disputes, we are ready to represent them in court.

 Strategies for Compliance:

Based on our advice and recommendations to ensure ongoing compliance the client implemented strategies such as:

- Data Audits: The company committed to conducting regular audits to confirm adherence to GDPR standards.

- Developing Privacy Policies: Clear and comprehensive privacy policies were established, ensuring users could easily understand how their data is used and processed.

Employee Training: Continuous education efforts were implemented, reinforcing employees' understanding of data protection rights and obligations.

Conclusion:

Achieving UK GDPR compliance is an ongoing journey rather than a one-time task. By fostering a culture of privacy and regularly updating their compliance strategies, organisations can effectively protect personal data. By engaging with legal experts like PAIL Solicitors and maintaining robust protection measures, you ensure not only legal compliance but also trust and accountability with stakeholders. This commitment to data protection is key in the ever-evolving digital world.  

Useful Resources

1.    What is GDPR, the EU’s new data protection law? - GDPR.eu

2.    A guide to the data protection exemptions | ICO

3.    Art. 6 GDPR – Lawfulness of processing - General Data Protection Regulation (GDPR),  

4.    ECSH10500 - Data Protection Act 2018/General Data Protection Regulation: introduction - HMRC internal manual - GOV.UK

5.    An overview of the UK's data privacy regime - Stevens & Bolton LLP

6.    The Data Protection Act 2018 and the UK GDPR | Legal Guidance | LexisNexis  

7.     UK-GDPR.org and GDPR-info.eu provide resources for understanding the UK-GDPR. 

Meet The Team: Peter Adediran; Maya El Husseini; Gabrielle Felix; Poppy Harston

Contact Us for More Information

For a quotation, please contact us at (020) 7305-7491 or peter@pailsolicitors.co.uk. We would be delighted to assist you. The writer is Mr Peter Adediran, the owner and principal solicitor at PAIL® Solicitors and a specialist in online reputation-related law. Subscribe to our newsletter to get blog post updates and other information about the firm straight to your inbox.