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Data security - Data Protection Act

Many businesses are totally reliant on the data stored on their PCs, laptops, networks, mobile devices and in the cloud. Some of this data is likely to contain either personal information and/or confidential company information.

Here we look at some of the key compliance issues surrounding data protection and the Data Protection Act 1998 (the Act). The Data Protection Act will be superseded by the General Data Protection Regulation (GDPR) in May 2018. Please see factsheets - 'Data Security - General Data Protection Regulation' and 'Data Security - General Data Protection Regulation - Preparation' for more information on GDPR.

Whilst compliance with the Data Protection Act is a good step towards compliance with the GDPR, there are a number of new compliance issues which need to be addressed before May 2018, so we recommend you read these related factsheets as well as this one.

Most businesses process personal data to a greater or lesser degree. If this is the case, compliance with the Act is required unless one of the exemptions applies (see below).

Complying with the Act includes a notification process, handling data according to the principles of data protection and dealing with subject access requests.

In the UK, the Information Commissioner (ICO) is responsible for the public Data Protection Register and for enforcing the Data Protection Act.

Summary of the principles of the Data Protection Act

1. Personal data must be fairly and lawfully processed;
2. Personal data must be processed for limited purposes;
3. Personal data must be adequate and not excessive;
4. Personal data must be accurate and up to date;
5. Personal data must be kept no longer than necessary;
6. Personal data must be processed in line with the data subjects' rights;
7. Personal data must be secure;
8. Personal data must not be transferred to countries outside the European Economic Area (EEA) without adequate protection.

Exemptions

There are 5 main categories of exemption -

organisations that process personal data only for:
• staff administration (including payroll)
• advertising, marketing and public relations (in connection with their own business activity) and
• accounts and records
some not-for-profit organisations
organisations that process personal data only for maintaining a public register
organisations that do not process personal information on computer and
individuals who process personal data only for domestic purposes.

There are a number of more specific exemptions. However, most companies find the exemptions are too narrow, and opt to notify (see below).

Notification

Notification is the method by which a company's usage of personal data is added to the public Data Protection register maintained by the ICO. The process starts by completing the notification documentation (available from www.ico.org.uk) and sending this back with the annual notification fee (currently £35 for the small business and charities for example).

Notification needs to be performed annually (even if there are no changes).

Be aware that there are shadow organisations who say they represent the ICO and who charge more than the standard £35 fee.

Subject Access Request (SAR)

Individuals have rights under the Act to find out whether you are processing personal data relating to them. Further, the individual may make a subject access request (SAR) which means they must be provided with a copy of the data which is stored about them.

Most SARs must be responded to within 40 days.

An individual has the right to ask you to:

• correct or delete information about them which is inaccurate;
• stop processing their personal data for direct marketing purposes;
• stop processing their data completely or in a particular way (depending upon the circumstances)

A fee can be levied for dealing with an SAR - but only up to £10 (except for health or education records where the fee may be higher or lower than £10).

If a fee is levied, the access request does not have to be complied with until the fee has been received.

The Act makes it clear that the SAR must contain enough information to validate that the person making the request is the individual to whom the personal data relates. So it may be necessary and is legitimate to ask for further identification from the originator of the SAR.

Data security

The Act says there should be security that is appropriate to:

• the nature of the information in question;
• the harm that might result from its improper use, or from it accidental loss or destruction.

The Act does not define 'appropriate' - but it does say that "an assessment of the appropriate security measures in a particular case should consider technological developments and the costs involved'.

So, there are a number of key areas to concentrate on which are considered below.

Management and organisational measures

Someone in the organisation should be given overall responsibility for data security.

Staff

Staff need to understand the importance of protecting personal data, that they are familiar with the organisation’s security policy, and that they follow security policies and procedures. There should be on-going training and refresher sessions to reinforce the need for good security.

Physical security

Technical security measures to protect computerised information are of obvious importance. However, many security incidents relate to the theft or loss of equipment, the disposal of old equipment not being wiped sufficiently and manual records not being shredded or otherwise disposed of securely.

Compliance with other Acts and regulations

As well as the necessity to comply with the Data Protection Act, there are various other Acts and regulations which have a bearing on data security. These include:

• Privacy and Electronic Communications Regulations (PECR) 2003 - which cover 'Spam' and mass-marketing mail shots. Regulations under the PECR are also issued from time to time. For example, regulations on the use of cookies on websites and in 2016 to require anyone making a marketing call to display their number.
• Copyright Design and Patents Act - amended 2002 to cover software theft.
• There may be other IT standards and regulations applicable to your business sector. For example, companies processing credit card transactions need to ensure compliance with the Payment Card Industry Data Security Standards (PCI DSS).

Sources and links

There is a wealth of information, checklists and other material on the Information Commissioner's (ICO) website regarding both the Data Protection Act and GDPR.