Data Protection & the public

1. Data Protection &the public Seán Sweeney Assistant Commissioner Office of the Data Protection Commissioner Ireland Gibraltar January 25th 2006

2. Presentation Outline • Background – Human Rights • Data Protection Principles • Rights of data subjects • Some FAQs

3. Why Data Protection? • Post-Word War II emphasis on human rights • George Orwell, “1984” (published in 1949) • International Agreements on Human Rights • Development of computer power

4. Privacy: Legal development Background • Universal Declaration on Human Rights (1948) • European Convention on Human Rights (1950) • Convention 108 (Council of Europe, 1981)

5. UN Universal Declaration on Human Rights, 1948 Article 12: No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence ... Everyone has the right to the protection of the law against such interference ….

6. European Convention on Human Rights, 1950 Background Article 8: Everyone has the right to respect for his private and family life, his home and his correspondence … There shall be no interference by a public authority with this right except such as is necessary in a democratic society

7. Key concept Privacy is a Human Right

8. Council of Europe Convention, 1981 • Also called “Convention 108” • Deals specifically with data protection • Ireland’s Data Protection Act 1988 gives effect to this Convention

9. Directive 95/46/EC • Harmonisation across EU. • Free movement of data across EU • Extends DP to manual records.

10. Key concept Data Protection Laws are one method of protecting privacy rights.

11. Essential points • People have a fundamental right to privacy • Rights granted in data protection legislation can be exercised against both private and public sector bodies

12. How DP legislation work • By imposing obligations on those who process personal data; • By providing rights to individuals regarding how their data are processed.

13. Limited exemptions: • Data exempt on National Security grounds. • Data that is processed for personal domestic or recreational purposes • DP isn’t a snoopers’ charter

14. Fair obtaining consent Accurate Specified purpose No further processing Unless compatible Relevant, not excessive Retention period Safe & secure Comply with access request Data Protection Principles.

15. Obtain & Process Fairly I 1st Principle • Data controller must give full information about • identity • purposes • disclosees • any other data necessary for “fairness” • Third party data controllers • must contact data subject to provide these details • must give name of original data controller

16. Obtain & Process Fairly II 1st Principle One of these conditions required: • Consent • Legal obligation • Contract with individual • Necessary to protect vital interests • Necessary for a public function (Justice) • necessary for ‘legitimate interests’

17. Processing Sensitive Data 1st Principle One of these additional conditions is required • Explicit consent • Necessary under employment law • To prevent injury or protect vital interests • Process the data of members/clients of non-profit orgs. • Legal advice • For Medical Purposes • Statutory function

18. What are sensitive data? • Physical or mental health • Racial origin • Political opinions • Religious or other beliefs • Sexual life • Criminal convictions • Alleged commission of offence • Trade Union membership

19. Fair Obtaining - practical • Transparency is the key issue • Generally, a person should know • who is processing his/her data • and for what purpose

20. Fair Obtaining - practical • Consent is easiest to rely upon • If from 3rd party, is their responsibility to demonstrate legitimacy to you • Consent has to be freely given • Not freely given in employment context • Rely upon contractual or statutory obligations • “Legitimate interest” is often applied

21. Fair Obtaining - practical • CCTV – well placed signage meets transparency requirement • Consent not required if CCTV for security • Legitimate interest • Consent not required if for health & safety • Legal obligation • Though consent not required, transparency requires information is supplied (sign)

22. Fair Obtaining - practical • If relying on consent for data obtained on a form • Require any consent clause to be at least as big a font size as the data collection element of form • If on-line, require a privacy statement that covers transparency & fair obtaining requirements

23. Accurate, Complete, up to date 2nd Principle Often a reactive rather than proactive task

24. Accurate - practical • If you change your address and do not tell your bank, they are not at fault for sending mail to your old address. • However, if mail is returned to the bank as undeliverable, the bank must act by at least not sending any more mail to that address.

25. Specified Purpose 3rd Principle • Part of obligations when obtaining to specify purpose • Cannot expand purpose without reverting to individual

26. Purpose - practical • Purpose might be implied from transaction - such as for administration of an account. • Otherwise, should be clearly referred to

27. Purpose – case study • A phone company published electronic telephone directory • Directory allowed search by address • This was a new purpose, as original directory only allowed search by name • Publication unlawful, directory withdrawn until issue resolved

28. Disclosing personal data 4th Principle • Further processing not generally permitted – compatibility test • section 19 – lifts the restrictions on disclosure: • crime; tax; State security; • required urgently to protect life and limb • required by law or court order • with consent of, or on behalf of, data subject

29. Disclosure - practical • An example of a compatible disclosure is where you supply data to an organisation in order to get a product/service. If that organisation must supply your data to a third party in order to get that product/service delivered, it is a compatible disclosure.

30. Relevant and not excessive 5th Principle Do you need all this data? - look a form and see if you need all data - can data collected be culled over time? Different policies for different sectors If you can’t see relevance –ASK!

31. Retention of data 6th Principle • Legal obligations to hold data? • Customer files • Do you need to hold all that data? • Personnel files • Revenue requirement? • Must have policy thought through • Defend retention as necessary for purpose.

32. Retention – HR files 6th Principle • When employees leaves/retires, employer might have long term need to hold onto certain data • Dates of employment • Positions held • Tax record • Injuries • But other data has no purpose beyond the time an ex-employee might seek a reference • Assessments & evaluations

33. Retention – Quotations 6th Principle • Insurance company may offer household or motor insurance quote • If “customer” does not take up offer within reasonable period (one month?) then that person is not a customer and details must be deleted – unless company has consent.

34. Retention – Financial record 6th Principle • Leisure & on-line sector often retain credit card details • May make future transactions easier and more secure • Can only be retained with customer consent!

35. Security Procedures 7th Principle Must have adequate security measures in place to prevent unauthorised access Measures vary depending of size of company, type of data

36. Data Processors Agents and sub-contractors There must be a written contract in place Data Controller must take reasonable steps to ensure compliance with security measures

37. Security - practical • Security standard should be reviewed - if the type of data being processed are changed; - if the organisation’s resources increase; - at least on an annual basis to see if new measures may be employed

38. Security - practical • Access to data should be on a need to know basis • Access controls should be known about, enforced and reviewed

39. Security – case study • Insurance company employee resigns but takes laptop with him • Laptop contains client list • Employee contacts clients on behalf of new employer • Original employer at fault for not taking measures to prevent this – not covered in employment contract.

40. Rights of Individuals 8th Principle • To have data processed in accordance with principles • To get a copy of personal information • To correct information if it is wrong • To opt out of direct marketing • To complain to the Data Protection Commissioner

41. Access Requests • Section 14 –exceptions section 19. • Availability of material subject to receipt of an Access Request • May question: • Relevance • Excessive nature • Retention, etc

42. Scope of Access Request • Applies to all manual and electronic records in existence at the time of receipt of an access request – regardless of when the record was created.

43. Opinion given in confidence • Exempt from an access request if the expression of an opinion was given in confidence or under the understanding it would be treated as confidential. • This is useful when giving references

44. Exempt from Access Requests • Data relating to a criminal investigation • a claim of liability • Data covered by legal privilege

45. Access – Disciplinary Investigation • Exempt if access would prejudice investigation • No longer exempt after investigation has concluded

46. Employee Access Rights • Same rights as any data subject • Not all documents with employee name are personal data • Authoring document in work capacity does not mean that document is personal.

47. Access Requests - Resources • Should not require significant resources • Retention principle should encourage deletion of data on a regular basis, thus limiting the amount of data to be searched

48. Structured files • Must be able to search files • By name of data subject? • By other reasonable identifier? • By date/file reference supplied by data subject • Electronic records easier to search than manual records

49. Enforced subject access • An employer cannot ask an employee to use his/her access right to obtain data in order to gain/retain employment • Police and credit records cannot be accessed unless by law

50. Empowerment The Right of Access empowers individuals by enabling them to supervise the processing of their personal data.