Introduction
What's new
Key definitions
What is personal data?
Principles
Lawfulness, fairness and transparency
Purpose limitation
Data minimisation
Accuracy
Storage limitation
Integrity and confidentiality (security)
Accountability principle
Lawful basis for processing
Consent
Contract
Legal obligation
Vital interests
Public task
Legitimate interests
Special category data
Criminal offence data
Individual rights
Right to be informed
Right of access
Right to rectification
Right to erasure
Right to restrict processing
Right to data portability
Right to object
Rights related to automated decision making including profiling
Accountability and governance
Contracts
Documentation
Data protection by design and default
Data protection impact assessments
Data protection officers
Codes of conduct
Certification
Guide to the data protection fee
Security
Encryption
Passwords in online services
Personal data breaches
International transfers
Exemptions
Applications
Children

Introduction

Introduction 

The Guide to the GDPR explains the provisions of the GDPR to help organisations comply with its requirements. It is for those who have day-to-day responsibility for data protection.

The GDPR forms part of the data protection regime in the UK, together with the new Data Protection Act 2018 (DPA 2018). The main provisions of this apply, like the GDPR, from 25 May 2018.

This guide refers to the DPA 2018 where it is relevant includes links to relevant sections of the GDPR itself, to other ICO guidance and to guidance produced by the EU’s Article 29 Working Party - now the European Data Protection Board (EDPB).

We intend the guide to cover the key points that organisations need to know. From now we will continue to develop new guidance and review our resources to take into account what organisations tell us they need. In the longer term we aim to publish more guidance under the umbrella of a new Guide to Data Protection, which will cover the GDPR and DPA 2018, and include law enforcement, the applied GDPR and other relevant provisions.

For a more detailed understanding of the GDPR it’s also helpful to read the guidelines produced by the EU’s Article 29 Working Party – which has now been renamed the European Data Protection Board (EDPB). The EDPB includes representatives of the data protection authorities from each EU member state, and the ICO is the UK’s representative. The ICO has been directly involved in drafting many of these. We have linked to relevant EU guidelines throughout the Guide to GDPR.

We produced many guidance documents on the previous Data Protection Act 1998. Even though that Act is no longer in force, some of them contain practical examples and advice which may still be helpful in applying the new legislation. While we are building our new Guide to Data Protection we will keep those documents accessible on our website, with the proviso that they cannot be taken as guidance on the DPA 2018.

We previously produced an Introduction to the Data Protection Bill as it was going through Parliament. We will update this document to reflect the final text of the DPA 2018 and publish it as soon as possible.

We also published a guide to the law enforcement provisions in Part 3 of the Data Protection Bill, which implement the EU Law Enforcement Directive. We will update this to reflect the relevant provisions in the DPA 2018.

What's new

We will update this page monthly to highlight and link to what’s new in our Guide to the GDPR.

November 2018

We have published detailed guidance on encryption.

September 2018

We have expanded our guidance on Exemptions.

August 2018

We have expanded our guidance on International transfers.

May 2018

The European Data Protection Board (EDPB) has published draft guidelines on certification and identifying certification criteria in accordance with Articles 42 and 43 of the Regulation 2016/679 for consultation. The consultation will end on 12 July.

We have published detailed guidance on children and the GDPR.

We have published detailed guidance on determining what is personal data.

We have expanded our guidance on data protection by design and default, and published detailed guidance on automated decision-making and profiling.

We have published a new page on codes of conduct, and a new page on certification.

We have published detailed guidance on the right to be informed.

We have published detailed guidance on Data Protection Impact Assessments (DPIAs).

We have expanded the pages on the right of access and the right to object.

We have published detailed guidance on consent.

We have expanded the page on the right to data portability.

April 2018

We have expanded the page on Accountability and governance.

We have expanded the page on Security.

We have updated all of the lawful basis pages to include a link to the lawful basis interactive guidance tool.

March 2018

We have published detailed guidance on DPIAs for consultation. The consultation will end on 13 April 2018. We have also updated the guide page on DPIAs to include the guide level content from the detailed guidance.

We have published detailed guidance on legitimate interests.

We have expanded the pages on:

February 2018

The consultation period for the Article 29 Working party guidelines on consent has now ended and comments are being reviewed. The latest timetable is for the guidelines to be finalised for adoption on 10-11 April.

The consultation period for the Article 29 Working Party guidelines on transparency has now ended.

Following the consultation period, the Article 29 Working Party has adopted final guidelines on Automated individual decision-making and Profiling and personal data breach notification. These have been added to the Guide.

We have published our Guide to the data protection fee.

We have updated the page on Children to include the guide level content from the detailed guidance on Children and the GDPR which is out for public consultation.

January 2018

We have published more detailed guidance on documentation.

We have expanded the page on personal data breaches.

We have also added four new pages in the lawful basis section, covering contract, legal obligationvital interests and public task.

December 2017

We have published detailed guidance on Children and the GDPR for public consultation. The consultation closes on 28 February 2018.

The sections on Lawful basis for processing and Rights related to automated individual decision making including profiling contain new expanded guidance. We have updated the section on Documentation with additional guidance and documentation templates. We have also added new sections on legitimate interests, special category data and criminal offence data, and updated the section on consent.

The Article 29 Working Party has published the following guidance, which is now included in the Guide.

It is inviting comments on these guidelines until 23 January 2018.

The consultation for the Article 29 Working Party guidelines on breach notification and automated decision-making and profiling ended on 28 November. We are reviewing the comments received together with other members of the Article 29 Working Party and expect the guidelines to be finalised in early 2018.

November 2017

The Article 29 Working Party has published guidelines on imposing administrative fines.

We have replaced the Overview of the GDPR with the Guide to the GDPR. The Guide currently contains similar content to the Overview, but we have expanded the sections on Consent and Contracts and Liabilities on the basis of the guidance on these topics which we have previously published for consultation.

The Guide to the GDPR is not yet a finished product; it is a framework on which we will build upcoming GDPR guidance and it reflects how future GDPR guidance will be presented. We will be publishing more detailed guidance on some topics and we will link to these from the Guide. We will do the same for guidelines from the Article 29 Working Party.

October 2017

The Article 29 Working Party has published the following guidance, which is now included in our overview. 

The Article 29 Working Party has also adopted guidelines on administrative fines and these are expected to be published soon.

In the Rights related to automated decision making and profiling we have updated the next steps for the ICO.

In the Key areas to consider we have updated the next steps in regard to the ICO’s consent guidance.

The deadline for responses to our draft GDPR guidance on contracts and liabilities for controllers and processors has now passed. We are analysing the feedback and this will feed into the final version.

September 2017

We have put out for consultation our draft GDPR guidance on contracts and liabilities for controllers and processors.

July 2017

In the Key areas to consider we have updated the next steps in regard to the ICO’s consent guidance and the Article 29 Working Party’s Europe-wide consent guidelines.

June 2017

The Article 29 Working Party’s consultation on their guidelines on high risk processing and data protection impact assessments closed on 23 May. We await the adoption of the final version.

May 2017

We have updated our GDPR 12 steps to take now document.

We have added a Getting ready for GDPR checklist to our self-assessment toolkit.

April 2017

We have published our profiling discussion paper for feedback.

March 2017

We have published our draft consent guidance for public consultation.

January 2017

Article 29 have published the following guidance, which is now included in our overview:

Key definitions

Who does the GDPR apply to?

What is personal data?

At a glance

In brief

What is personal data?

What are identifiers and related factors?

Can we identify an individual directly from the information we have?

Can we identify an individual indirectly from the information we have (together with other available information)?

What is the meaning of ‘relates to’?

What happens when different organisations process the same data for different purposes?

In more detail – ICO guidance

We have published detailed guidance on determining what is personal data.

Principles

At a glance    

In brief

What’s new under the GDPR?   

The principles are broadly similar to the principles in the Data Protection Act 1998 (the 1998 Act).

  1998 Act:   GDPR:  
  Principle 1 – fair and lawful   Principle (a) – lawfulness, fairness and transparency  
  Principle 2 – purposes   Principle (b) – purpose limitation  
  Principle 3 – adequacy   Principle (c) – data minimisation  
  Principle 4 – accuracy   Principle (d) – accuracy  
  Principle 5 - retention   Principle (e) – storage limitation  
  Principle 6 – rights   No principle – separate provisions in Chapter III  
  Principle 7 – security   Principle (f) – integrity and confidentiality  
  Principle 8 – international transfers   No principle – separate provisions in Chapter V  
 

(no equivalent)

 

Accountability principle

 

However there are a few key changes. Most obviously: 

What are the principles? 

Article 5 of the GDPR sets out seven key principles which lie at the heart of the general data protection regime.

Article 5(1) requires that personal data shall be:  

“(a) processed lawfully, fairly and in a transparent manner in relation to individuals (‘lawfulness, fairness and transparency’);

(b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial purposes (‘purpose limitation’);

(c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (‘data minimisation’);

(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’);

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes subject to implementation of the appropriate technical and organisational measures required by the GDPR in order to safeguard the rights and freedoms of individuals (‘storage limitation’);

(f) processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (‘integrity and confidentiality’).”

Article 5(2) adds that:

“The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 (‘accountability’).”

For more detail on each principle, please read the relevant page of this guide.

Why are the principles important?

The principles lie at the heart of the GDPR. They are set out right at the start of the legislation, and inform everything that follows. They don’t give hard and fast rules, but rather embody the spirit of the general data protection regime - and as such there are very limited exceptions.

Compliance with the spirit of these key principles is therefore a fundamental building block for good data protection practice. It is also key to your compliance with the detailed provisions of the GPDR.

Failure to comply with the principles may leave you open to substantial fines. Article 83(5)(a) states that infringements of the basic principles for processing personal data are subject to the highest tier of administrative fines. This could mean a fine of up to €20 million, or 4% of your total worldwide annual turnover, whichever is higher.

Further reading

Read our individual rights and international transfers guidance

Lawfulness, fairness and transparency

At a glance

Checklist

Lawfulness

We have identified an appropriate lawful basis (or bases) for our processing.

If we are processing special category data or criminal offence data, we have identified a condition for processing this type of data.

We don’t do anything generally unlawful with personal data.

Fairness

We have considered how the processing may affect the individuals concerned and can justify any adverse impact.

We only handle people’s data in ways they would reasonably expect, or we can explain why any unexpected processing is justified.

We do not deceive or mislead people when we collect their personal data.

Transparency

We are open and honest, and comply with the transparency obligations of the right to be informed.

 In brief

What’s new under the GDPR?

The lawfulness, fairness and transparency principle is broadly similar to the first principle of the 1998 Act. Fairness is still fundamental. You still need to process personal data fairly and lawfully, but the requirement to be transparent about what you do with people’s data is now more clearly signposted.

As with the 1998 Act, you still need to identify valid grounds to process people’s data. This is now known as a ‘lawful basis’ rather than a ‘condition for processing’, but the principle is the same. Identifying a lawful basis is essential for you to comply with the ‘lawfulness’ aspect of this principle.

The concept of ‘fair processing information’ is no longer incorporated into the concept of fairness. Although transparency is still a fundamental part of this overarching principle, the detail of transparency obligations is now set out in separate provisions on a new ‘right to be informed’.

What is the lawfulness, fairness and transparency principle?

Article 5(1) of the GDPR says: 


“1. Personal data shall be:

(a) processed lawfully, fairly and in a transparent manner in relation to the data subject (‘lawfulness, fairness, transparency’)”

There are more detailed provisions on lawfulness and having a ‘lawful basis for processing’ set out in Articles 6 to 10.

There are more detailed transparency obligations set out in Articles 13 and 14, as part of the ‘right to be informed’.

The three elements of lawfulness, fairness and transparency overlap, but you must make sure you satisfy all three. It’s not enough to show your processing is lawful if it is fundamentally unfair to or hidden from the individuals concerned.

What is lawfulness?

For processing of personal data to be lawful, you need to identify specific grounds for the processing. This is called a ‘lawful basis’ for processing, and there are six options which depend on your purpose and your relationship with the individual. There are also specific additional conditions for processing some especially sensitive types of data. For more information, see the lawful basis section of this guide.

If no lawful basis applies then your processing will be unlawful and in breach of this principle.

Lawfulness also means that you don’t do anything with the personal data which is unlawful in a more general sense. This includes statute and common law obligations, whether criminal or civil. If processing involves committing a criminal offence, it will obviously be unlawful. However, processing may also be unlawful if it results in:

These are just examples, and this list is not exhaustive. You may need to take your own legal advice on other relevant legal requirements.

Although processing personal data in breach of copyright or industry regulations (for example) will involve unlawful processing in breach of this principle, this does not mean that the ICO can pursue allegations which are primarily about breaches of copyright, financial regulations or other laws outside our remit and expertise as data protection regulator. In this situation there are likely to be other legal or regulatory routes of redress where the issues can be considered in a more appropriate forum.

If you have processed personal data unlawfully, the GDPR gives individuals the right to erase that data or restrict your processing of it.

What is fairness?

Processing of personal data must always be fair as well as lawful. If any aspect of your processing is unfair you will be in breach of this principle – even if you can show that you have a lawful basis for the processing.

In general, fairness means that you should only handle personal data in ways that people would reasonably expect and not use it in ways that have unjustified adverse effects on them. You need to stop and think not just about how you can use personal data, but also about whether you should.

Assessing whether you are processing information fairly depends partly on how you obtain it. In particular, if anyone is deceived or misled when the personal data is obtained, then this is unlikely to be fair.

In order to assess whether or not you are processing personal data fairly, you must consider more generally how it affects the interests of the people concerned – as a group and individually. If you have obtained and used the information fairly in relation to most of the people it relates to but unfairly in relation to one individual, there will still be a breach of this principle.

Personal data may sometimes be used in a way that negatively affects an individual without this necessarily being unfair. What matters is whether or not such detriment is justified.

Example

Where personal data is collected to assess tax liability or to impose a fine for breaking the speed limit, the information is being used in a way that may cause detriment to the individuals concerned, but the proper use of personal data for these purposes will not be unfair.

You should also ensure that you treat individuals fairly when they seek to exercise their rights over their data. This ties in with your obligation to facilitate the exercise of individuals’ rights. Read our guidance on rights for more information.

What is transparency?

Transparency is fundamentally linked to fairness. Transparent processing is about being clear, open and honest with people from the start about who you are, and how and why you use their personal data.

Transparency is always important, but especially in situations where individuals have a choice about whether they wish to enter into a relationship with you. If individuals know at the outset what you will use their information for, they will be able to make an informed decision about whether to enter into a relationship, or perhaps to try to renegotiate the terms of that relationship.

Transparency is important even when you have no direct relationship with the individual and collect their personal data from another source. In some cases, it can be even more important - as individuals may have no idea that you are collecting and using their personal data, and this affects their ability to assert their rights over their data. This is sometimes known as ‘invisible processing’.

You must ensure that you tell individuals about your processing in a way that is easily accessible and easy to understand. You must use clear and plain language.

For more detail on your transparency obligations and the privacy information you must provide to individuals, see our guidance on the right to be informed.

Purpose limitation

At a glance

Checklist

 We have clearly identified our purpose or purposes for processing.

 We have documented those purposes.

 We include details of our purposes in our privacy information for individuals.

 We regularly review our processing and, where necessary, update our documentation and our privacy information for individuals.

 If we plan to use personal data for a new purpose, we check that this is compatible with our original purpose or we get specific consent for the new purpose.

In brief

What’s new under the GDPR?

The purpose limitation principle is very similar to the second principle of the 1998 Act, with a few small differences.

As with the 1998 Act, you still need to specify your purpose or purposes for processing at the outset. However, under the GDPR you do this by complying with your documentation and transparency obligations, rather than through registration with the ICO.

The purpose limitation principle still prevents you from using personal data for new purposes if they are ‘incompatible’ with your original purpose for collecting the data, but the GDPR contains more detail on assessing compatibility.

Instead of an exemption for research purposes, the GDPR purpose limitation principle specifically says that it does not prevent further processing for:

What is the purpose limitation principle?

Article 5(1)(b) says:


“1. Personal data shall be:

(b) collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall, in accordance with Article 89(1), not be considered to be incompatible with the initial purposes.”

In practice, this means that you must:

Why do we need to specify our purposes?

This requirement aims to ensure that you are clear and open about your reasons for obtaining personal data, and that what you do with the data is in line with the reasonable expectations of the individuals concerned.

Specifying your purposes from the outset helps you to be accountable for your processing, and helps you avoid ‘function creep’. It also helps individuals understand how you use their data, make decisions about whether they are happy to share their details, and assert their rights over data where appropriate. It is fundamental to building public trust in how you use personal data.

There are clear links with other principles – in particular, the fairness, lawfulness and transparency principle. Being clear about why you are processing personal data will help you to ensure your processing is fair, lawful and transparent. And if you use data for unfair, unlawful or ‘invisible’ reasons, it’s likely to be a breach of both principles.

Specifying your purposes is necessary to comply with your accountability obligations.

How do we specify our purposes?

If you comply with your documentation and transparency obligations, you are likely to comply with the requirement to specify your purposes without doing anything more:

However, you should also remember that whatever you document, and whatever you tell people, this cannot make fundamentally unfair processing fair and lawful.

If you are a small organisation and you are exempt from some documentation requirements, you may not need to formally document all of your purposes to comply with the purpose limitation principle. Listing your purposes in the privacy information you provide to individuals will be enough. However, it is still good practice to document all of your purposes. For more information, read our documentation guidance.

If you have not provided privacy information because you are only using personal data for an obvious purpose that individuals already know about, the “specified purpose” should be taken to be the obvious purpose.

You should regularly review your processing, documentation and privacy information to check that your purposes have not evolved over time beyond those you originally specified (‘function creep’).

Once we collect personal data for a specified purpose, can we use it for other purposes?

The GDPR does not ban this altogether, but there are restrictions. In essence, if your purposes change over time or you want to use data for a new purpose which you did not originally anticipate, you can only go ahead if:

If your new purpose is compatible, you don’t need a new lawful basis for the further processing. However, you should remember that if you originally collected the data on the basis of consent, you usually need to get fresh consent to ensure your new processing is fair and lawful. See our lawful basis guidance for more information.

You also need to make sure that you update your privacy information to ensure that your processing is still transparent.

What is a ‘compatible’ purpose?

The GDPR specifically says that the following purposes should be considered to be compatible purposes:

Otherwise, the GDPR says that to decide whether a new purpose is compatible (or as the GDPR says, “not incompatible”) with your original purpose you should take into account:

As a general rule, if the new purpose is either very different from the original purpose, would be unexpected, or would have an unjustified impact on the individual, it is likely to be incompatible with your original purpose. In practice, you are likely to need to ask for specific consent to use or disclose data for this type of purpose.

Example

A GP discloses his patient list to his wife, who runs a travel agency, so that she can offer special holiday deals to patients needing recuperation. Disclosing the information for this purpose would be incompatible with the purposes for which it was obtained.

There are clear links here with the lawfulness, fairness and transparency principle. In practice, if your intended processing is fair, you are unlikely to breach the purpose limitation principle on the basis of incompatibility.

Data minimisation

At a glance

You must ensure the personal data you are processing is:

Checklist

☐ We only collect personal data we actually need for our specified purposes.

☐ We have sufficient personal data to properly fulfil those purposes.

☐ We periodically review the data we hold, and delete anything we don’t need. 

In brief  

What’s new under the GDPR? 

Very little. The data minimisation principle is almost identical to the third principle (adequacy) of the 1998 Act.

The main difference in practice is that you must be prepared to demonstrate you have appropriate data minimisation practices in line with new accountability obligations, and there are links to the new rights of erasure and rectification.

What is the data minimisation principle?

Article 5(1)(c) says:


“1. Personal data shall be:

(c) adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (data minimisation)”

So you should identify the minimum amount of personal data you need to fulfil your purpose. You should hold that much information, but no more.

This is the first of three principles about data standards, along with accuracy and storage limitation.

The accountability principle means that you need to be able to demonstrate that you have appropriate processes to ensure that you only collect and hold the personal data you need.

Also bear in mind that the GDPR says individuals have the right to complete any incomplete data which is inadequate for your purpose, under the right to rectification. They also have right to get you to delete any data that is not necessary for your purpose, under the right to erasure (right to be forgotten).

How do we decide what is adequate, relevant and limited?

The GDPR does not define these terms. Clearly, though, this will depend on your specified purpose for collecting and using the personal data. It may also differ from one individual to another.

So, to assess whether you are holding the right amount of personal data, you must first be clear about why you need it.

For special category data or criminal offence data, it is particularly important to make sure you collect and retain only the minimum amount of information.

You may need to consider this separately for each individual, or for each group of individuals sharing relevant characteristics. You should in particular consider any specific factors that an individual brings to your attention – for example, as part of an objection, request for rectification of incomplete data, or request for erasure of unnecessary data.

You should periodically review your processing to check that the personal data you hold is still relevant and adequate for your purposes, and delete anything you no longer need. This is closely linked with the storage limitation principle.

When could we be processing too much personal data?

You should not have more personal data than you need to achieve your purpose. Nor should the data include irrelevant details.

Example

A debt collection agency is engaged to find a particular debtor. It collects information on several people with a similar name to the debtor. During the enquiry some of these people are discounted. The agency should delete most of their personal data, keeping only the minimum data needed to form a basic record of a person they have removed from their search. It is appropriate to keep this small amount of information so that these people are not contacted again about debts which do not belong to them.

If you need to process particular information about certain individuals only, you should collect it just for those individuals – the information is likely to be excessive and irrelevant in relation to other people.

Example

A recruitment agency places workers in a variety of jobs. It sends applicants a general questionnaire, which includes specific questions about health conditions that are only relevant to particular manual occupations. It would be irrelevant and excessive to obtain such information from an individual who was applying for an office job.

You must not collect personal data on the off-chance that it might be useful in the future. However, you may be able to hold information for a foreseeable event that may never occur if you can justify it.

Example

An employer holds details of the blood groups of some of its employees. These employees do hazardous work and the information is needed in case of accident. The employer has in place safety procedures to help prevent accidents so it may be that this data is never needed, but it still needs to hold this information in case of emergency.

If the employer holds the blood groups of the rest of the workforce, though, such information is likely to be irrelevant and excessive as they do not engage in the same hazardous work.

If you are holding more data than is actually necessary for your purpose, this is likely to be unlawful (as most of the lawful bases have a necessity element) as well as a breach of the data minimisation principle. Individuals will also have the right to erasure. 

When could we be processing inadequate personal data?

If the processing you carry out is not helping you to achieve your purpose then the personal data you have is probably inadequate. You should not process personal data if it is insufficient for its intended purpose.

In some circumstances you may need to collect more personal data than you had originally anticipated using, so that you have enough information for the purpose in question.

Example

A group of individuals set up a club. At the outset the club has only a handful of members, who all know each other, and the club’s activities are administered using only basic information about the members’ names and email addresses. The club proves to be very popular and its membership grows rapidly. It becomes necessary to collect additional information about members so that the club can identify them properly, and so that it can keep track of their membership status, subscription payments etc.

Data may also be inadequate if you are making decisions about someone based on an incomplete understanding of the facts. In particular, if an individual asks you to supplement incomplete data under their right to rectification, this could indicate that the data might be inadequate for your purpose.

Obviously it makes no business sense to have inadequate personal data – but you must be careful not to go too far the other way and collect more than you need.

What about the adequacy and relevance of opinions?

A record of an opinion is not necessarily inadequate or irrelevant personal data just because the individual disagrees with it or thinks it has not taken account of information they think is important.

However, in order to be adequate, your records should make clear that it is opinion rather than fact. The record of the opinion (or of the context it is held in) should also contain enough information to enable a reader to interpret it correctly. For example, it should state the date and the author’s name and position.

If an opinion is likely to be controversial or very sensitive, or if it will have a significant impact when used or disclosed, it is even more important to state the circumstances or the evidence it is based on. If a record contains an opinion that summarises more detailed records held elsewhere, you should make this clear.

Example

A GP's record may hold only a letter from a consultant and it will be the hospital file that contains greater detail. In this case, the record of the consultant’s opinion should contain enough information to enable detailed records to be traced.

For more information about the accuracy of opinions, see our guidance on the accuracy principle.

Accuracy

At a glance

Checklist

 We ensure the accuracy of any personal data we create.

 We have appropriate processes in place to check the accuracy of the data we collect, and we record the source of that data.

 We have a process in place to identify when we need to keep the data updated to properly fulfil our purpose, and we update it as necessary.

 If we need to keep a record of a mistake, we clearly identify it as a mistake.

 Our records clearly identify any matters of opinion, and where appropriate whose opinion it is and any relevant changes to the underlying facts.

 We comply with the individual’s right to rectification and carefully consider any challenges to the accuracy of the personal data.

 As a matter of good practice, we keep a note of any challenges to the accuracy of the personal data.

In brief

What’s new under the GDPR?

The accuracy principle is very similar to the fourth principle of the 1998 Act, with a couple of differences:

However, the ICO does not consider that this requires a major change in approach. The main difference in practice is that individuals have a stronger right to have inaccurate personal data corrected under the right to rectification.

What is the accuracy principle?

Article 5(1)(d) says:


“1. Personal data shall be: 

(d) accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay (‘accuracy’)”

This is the second of three principles about data standards, along with data minimisation and storage limitation.

There are clear links here to the right to rectification, which gives individuals the right to have inaccurate personal data corrected.

In practice, this means that you must:

When is personal data ‘accurate’ or ‘inaccurate’? 

The GDPR does not define the word ‘accurate’. However, the Data Protection Act 2018 does say that ‘inaccurate’ means “incorrect or misleading as to any matter of fact”. It will usually be obvious whether personal data is accurate.

You must always be clear about what you intend the record of the personal data to show. What you use it for may affect whether it is accurate or not. For example, just because personal data has changed doesn’t mean that a historical record is inaccurate – but you must be clear that it is a historical record.

Example

If an individual moves house from London to Manchester a record saying that they currently live in London will obviously be inaccurate. However a record saying that the individual once lived in London remains accurate, even though they no longer live there.

Example

The Postcode Address File (PAF) contains UK property postal addresses. It is structured to reflect the way the Royal Mail delivers post. So it is common for someone to have a postal address linked to a town in one county (eg Stoke-on-Trent in Staffordshire) even if they actually live in another county (eg Cheshire) and pay council tax to that council. The PAF file is not intended to accurately reflect county boundaries.

What about records of mistakes?

There is often confusion about whether it is appropriate to keep records of things that happened which should not have happened. Individuals understandably do not want their records to be tarnished by, for example, a penalty or other charge that was later cancelled or refunded.

However, you may legitimately need your records to accurately reflect the order of events – in this example, that a charge was imposed, but later cancelled or refunded. Keeping a record of the mistake and its correction might also be in the individual’s best interests.

Example

A misdiagnosis of a medical condition continues to be held as part of a patient’s medical records even after the diagnosis is corrected, because it is relevant for the purpose of explaining treatment given to the patient, or for other health problems.

It is acceptable to keep records of mistakes, provided those records are not misleading about the facts. You may need to add a note to make clear that a mistake was made.

Example 

An individual finds that, because of an error, their account with their existing energy supplier has been closed and an account opened with a new supplier. Understandably aggrieved, they believe the original account should be reinstated and no record kept of the unauthorised transfer. Although this reaction is understandable, if their existing supplier did close their account, and another supplier opened a new account, then records reflecting what actually happened will be accurate. In such cases it makes sense to ensure that the record clearly shows that an error occurred.

Example

An individual is dismissed for alleged misconduct. An Employment Tribunal finds that the dismissal was unfair and the individual is reinstated. The individual demands that the employer deletes all references to misconduct. However, the record of the dismissal is accurate. The Tribunal’s decision was that the employee should not have been dismissed on those grounds. The employer should ensure its records reflect this.

What about accuracy of opinions?

A record of an opinion is not necessarily inaccurate personal data just because the individual disagrees with it, or it is later proved to be wrong. Opinions are, by their very nature, subjective and not intended to record matters of fact.

However, in order to be accurate, your records must make clear that it is an opinion, and, where appropriate, whose opinion it is. If it becomes clear that an opinion was based on inaccurate data, you should also record this fact in order to ensure your records are not misleading.

Example 

An area of particular sensitivity is medical opinion, where doctors routinely record their opinions about possible diagnoses. It is often impossible to conclude with certainty, perhaps until time has passed or tests have been done, whether a patient is suffering from a particular condition. An initial diagnosis (which is an informed opinion) may prove to be incorrect after more extensive examination or further tests. However, if the patient’s records reflect the doctor’s diagnosis at the time, the records are not inaccurate, because they accurately reflect that doctor’s opinion at a particular time. Moreover, the record of the doctor’s initial diagnosis may help those treating the patient later, and in data protection terms is required in order to comply with the ‘adequacy’ element of the data minimisation principle.

If an individual challenges the accuracy of an opinion, it is good practice to add a note recording the challenge and the reasons behind it.

How much weight is actually placed on an opinion is likely to depend on the experience and reliability of the person whose opinion it is, and what they base their opinion on. An opinion formed during a brief meeting will probably be given less weight than one derived from considerable dealings with the individual. However, this is not really an issue of accuracy. Instead, you need to consider whether the personal data is “adequate” for your purposes, in line with the data minimisation principle.

Note that some records that may appear to be opinions do not contain an opinion at all. For example, many financial institutions use credit scores to help them decide whether to provide credit. A credit score is a number that summarises the historical credit information on a credit report and provides a numerical predictor of the risk involved in granting an individual credit. Credit scores are based on a statistical analysis of individuals’ personal data, rather than on a subjective opinion about their creditworthiness. However, you must ensure the accuracy (and adequacy) of the underlying data.

Does personal data always have to be up to date?

This depends on what you use the information for. If you use the information for a purpose that relies on it remaining current, you should keep it up to date. For example, you should update your employee payroll records when there is a pay rise. Similarly, you should update your records for customers’ changes of address so that goods are delivered to the correct location.

In other cases, it will be equally obvious that you do not need to update information.

Example

An individual places a one-off order with an organisation. The organisation will probably have good reason to retain a record of the order for a certain period for accounting reasons and because of possible complaints. However, this does not mean that it has to regularly check that the customer is still living at the same address.

You do not need to update personal data if this would defeat the purpose of the processing. For example, if you hold personal data only for statistical, historical or other research reasons, updating the data might defeat that purpose.

In some cases it is reasonable to rely on the individual to tell you when their personal data has changed, such as when they change address or other contact details. It may be sensible to periodically ask individuals to update their own details, but you do not need to take extreme measures to ensure your records are up to date, unless there is a corresponding privacy risk which justifies this.

Example

An organisation keeps addresses and contact details of previous customers for marketing purposes. It does not have to use data matching or tracing services to ensure its records are up to date – and it may actually be difficult to show that the processing involved in data matching or tracing for these purposes is fair, lawful and transparent.

However, if an individual informs the organisation of a new address, it should update its records. And if a mailing is returned with the message ‘not at this address’ marked on the envelope – or any other information comes to light which suggests the address is no longer accurate – the organisation should update its records to indicate that the address is no longer current.

What steps do we need to take to ensure accuracy?

Where you use your own resources to compile personal data about an individual, then you must make sure the information is correct. You should take particular care if the information could have serious implications for the individual. If, for example, you give an employee a pay increase on the basis of an annual increment and a performance bonus, then there is no excuse for getting the new salary figure wrong in your payroll records.

We recognise that it may be impractical to check the accuracy of personal data someone else provides. In order to ensure that your records are not inaccurate or misleading in this case, you must:

What is a ‘reasonable step’ will depend on the circumstances and, in particular, the nature of the personal data and what you will use it for. The more important it is that the personal data is accurate, the greater the effort you should put into ensuring its accuracy. So if you are using the data to make decisions that may significantly affect the individual concerned or others, you need to put more effort into ensuring accuracy. This may mean you have to get independent confirmation that the data is accurate. For example, employers may need to check the precise details of job applicants’ education, qualifications and work experience if it is essential for that particular role, when they would need to obtain authoritative verification.

Example

An organisation recruiting a driver will want proof that the individuals they interview are entitled to drive the type of vehicle involved. The fact that an applicant states in his work history that he worked as a Father Christmas in a department store 20 years ago does not need to be checked for this particular job.

If your information source is someone you know to be reliable, or is a well-known organisation, it is usually reasonable to assume that they have given you accurate information. However, in some circumstances you need to double-check – for example if inaccurate information could have serious consequences, or if common sense suggests there may be a mistake.

Example

A business that is closing down recommends a member of staff to another organisation. Assuming the two employers know each other, it may be reasonable for the organisation to which the recommendation is made to accept assurances about the individual’s work experience at face value. However, if a particular skill or qualification is needed for the new job role, the organisation needs to make appropriate checks.

Example

An individual sends an email to her mobile phone company requesting that it changes its records about her willingness to receive marketing material. The company amends its records accordingly without making any checks. However, when the customer emails again asking the company to send her bills to a new address, they carry out additional security checks before making the requested change.

Even if you originally took all reasonable steps to ensure the accuracy of the data, if you later get any new information which suggests it may be wrong or misleading, you should reconsider whether it is accurate and take steps to erase, update or correct it in light of that new information as soon as possible.

What should we do if an individual challenges the accuracy of their personal data?

If this happens, you should consider whether the information is accurate and, if it is not, you should delete or correct it.

Remember that individuals have the absolute right to have incorrect personal data rectified – see the right to rectification for more information.

Individuals don’t have the right to erasure just because data is inaccurate. However, the accuracy principle requires you to take all reasonable steps to erase or rectify inaccurate data without delay, and it may be reasonable to erase the data in some cases. If an individual asks you to delete inaccurate data it is therefore good practice to consider this request.

Further reading

Read our guidance on:

The right to rectification

The right to erasure 

Storage limitation

At a glance

Checklist

 We know what personal data we hold and why we need it.

 We carefully consider and can justify how long we keep personal data.

 We have a policy with standard retention periods where possible, in line with documentation obligations.

 We regularly review our information and erase or anonymise personal data when we no longer need it.

 We have appropriate processes in place to comply with individuals’ requests for erasure under ‘the right to be forgotten’.

 We clearly identify any personal data that we need to keep for public interest archiving, scientific or historical research, or statistical purposes.

Other resources

For more detailed checklists and practice advice on retention, please use the ICO’s self-assessment toolkit - records management checklist

In brief

What’s new under the GDPR?

The storage limitation principle is broadly similar to the fifth principle (retention) of the 1998 Act. The key point remains that you must not keep data for longer than you need it.

Although there is no underlying change, the GDPR principle does highlight that you can keep anonymised data for as long as you want. In other words, you can either delete or anonymise the personal data once you no longer need it.

Instead of an exemption for research purposes, the GDPR principle specifically says that you can keep personal data for longer if you are only keeping it for public interest archiving, scientific or historical research, or statistical purposes (and you have appropriate safeguards).

New documentation provisions mean that you must now have a policy setting standard retention periods where possible.

There are also clear links to the new right to erasure (right to be forgotten). In practice, this means you must now review whether you still need to keep personal data if an individual asks you to delete it.

What is the storage limitation principle?

Article 5(1)(e) says:

1. Personal data shall be:

(e) kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) subject to implementation of the appropriate technical and organisational measures required by this Regulation in order to safeguard the rights and freedoms of the data subject (‘storage limitation’)”

So, even if you collect and use personal data fairly and lawfully, you cannot keep it for longer than you actually need it.

There are close links here with the data minimisation and accuracy principles.

The GDPR does not set specific time limits for different types of data. This is up to you, and will depend on how long you need the data for your specified purposes.

Why is storage limitation important?

Ensuring that you erase or anonymise personal data when you no longer need it will reduce the risk that it becomes irrelevant, excessive, inaccurate or out of date. Apart from helping you to comply with the data minimisation and accuracy principles, this also reduces the risk that you will use such data in error – to the detriment of all concerned.

Personal data held for too long will, by definition, be unnecessary. You are unlikely to have a lawful basis for retention.

From a more practical perspective, it is inefficient to hold more personal data than you need, and there may be unnecessary costs associated with storage and security.

Remember that you must also respond to subject access requests for any personal data you hold. This may be more difficult if you are holding old data for longer than you need.

Good practice around storage limitation - with clear policies on retention periods and erasure - is also likely to reduce the burden of dealing with queries about retention and individual requests for erasure.

Do we need a retention policy?

Retention policies or retention schedules list the types of record or information you hold, what you use it for, and how long you intend to keep it. They help you establish and document standard retention periods for different categories of personal data.

A retention schedule may form part of a broader ‘information asset register’ (IAR), or your general processing documentation.

To comply with documentation requirements, you need to establish and document standard retention periods for different categories of information you hold wherever possible. It is also advisable to have a system for ensuring that your organisation keeps to these retention periods in practice, and for reviewing retention at appropriate intervals. Your policy must also be flexible enough to allow for early deletion if appropriate. For example, if you are not actually using a record, you should reconsider whether you need to retain it.

If you are a small organisation undertaking occasional low-risk processing, you may not need a documented retention policy.

However, if you don’t have a retention policy (or if it doesn’t cover all of the personal data you hold), you must still regularly review the data you hold, and delete or anonymise anything you no longer need.

Further reading – records management and retention schedules

The National Archives (TNA) publishes practical guidance for public authorities on a range of records management topics, including retention and disposal. This guidance can help you comply with the storage limitation principle (even if you are not a public authority):

Disposing of records

FOI Records Management Code – Guide 8: Disposal of records

The Keeper of the Records of Scotland also publishes guidance on Scottish public authorities’ records management obligations, including specific guidance on retention schedules.

How should we set retention periods?  

The GDPR does not dictate how long you should keep personal data. It is up to you to justify this, based on your purposes for processing. You are in the best position to judge how long you need it.

You must also be able to justify why you need to keep personal data in a form that permits identification of individuals. If you do not need to identify individuals, you should anonymise the data so that identification is no longer possible.

For example:

Example

A bank holds personal data about its customers. This includes details of each customer’s address, date of birth and mother’s maiden name. The bank uses this information as part of its security procedures. It is appropriate for the bank to retain this data for as long as the customer has an account with the bank. Even after the account has been closed, the bank may need to continue holding some of this information for legal or operational reasons for a further set time.

Example

A bank may need to retain images from a CCTV system installed to prevent fraud at an ATM machine for several weeks, since a suspicious transaction may not come to light until the victim gets their bank statement. In contrast, a pub may only need to retain images from their CCTV system for a short period because incidents will come to light very quickly. However, if a crime is reported to the police, the pub will need to retain images until the police have time to collect them.

Example

A tracing agency holds personal data about a debtor so that it can find that individual on behalf of a creditor. Once it has found the individual and reported to the creditor, there may be no need to retain the information about the debtor – the agency should remove it from their systems unless there are good reasons for keeping it. Such reasons could include if the agency has also been asked to collect the debt, or because the agency is authorised to use the information to trace debtors on behalf of other creditors.

Example

A business may need to keep some personal data about a previous customer so that they can deal with any complaints the customer might make about the services they provided.

Example

An employer should review the personal data it holds about an employee when they leave the organisation’s employment. It will need to retain enough data to enable the organisation to deal with, for example, providing references or pension arrangements. However, it should delete personal data that it is unlikely to need again from its records – such as the employee’s emergency contact details, previous addresses, or death-in-service beneficiary details.

Example

A business receives a notice from a former customer requiring it to stop processing the customer’s personal data for direct marketing. It is appropriate for the business to retain enough information about the former customer for it to stop including that person in future direct marketing activities.

Example

An employer receives several applications for a job vacancy. Unless there is a clear business reason for doing so, the employer should not keep recruitment records for unsuccessful applicants beyond the statutory period in which a claim arising from the recruitment process may be brought.

You must remember to take a proportionate approach, balancing your needs with the impact of retention on individuals’ privacy. Don’t forget that your retention of the data must also always be fair and lawful. 

When should we review our retention?

You should review whether you still need personal data at the end of any standard retention period, and erase or anonymise it unless there is a clear justification for keeping it for longer. Automated systems can flag records for review, or delete information after a pre-determined period. This is particularly useful if you hold many records of the same type.

It is also good practice to review your retention of personal data at regular intervals before this, especially if the standard retention period is lengthy or there is potential for a significant impact on individuals.

If you don’t have a set retention period for the personal data, you must regularly review whether you still need it.

However, there is no firm rule about how regular these reviews must be. Your resources may be a relevant factor here, along with the privacy risk to individuals. The important thing to remember is that you must be able to justify your retention and how often you review it.

You must also review whether you still need personal data if the individual asks you to. Individuals have the absolute right to erasure of personal data that you no longer need for your specified purposes.

What should we do with personal data that we no longer need?

You can either erase (delete) it, or anonymise it.

You need to remember that there is a significant difference between permanently deleting personal data, and taking it offline. If personal data is stored offline, this should reduce its availability and the risk of misuse or mistake. However, you are still processing personal data. You should only store it offline (rather than delete it) if you can still justify holding it. You must be prepared to respond to subject access requests for personal data stored offline, and you must still comply with all the other principles and rights.

The word ‘deletion’ can mean different things in relation to electronic data, and we recognise it is not always possible to delete or erase all traces of the data. The key issue is to ensure you put the data beyond use. If it is appropriate to delete personal data from a live system, you should also delete it from any back-up of the information on that system.

Further reading

We produced detailed guidance on the issues surrounding deletion under the 1998 Act. This will be updated for the GDPR in due course, but in the meantime still offers useful guidance on the practical issues surrounding deletion:

Deleting personal data


Alternatively, you can anonymise the data so that it is no longer “in a form which permits identification of data subjects”.

Personal data that has been pseudonymised – eg key-coded – will usually still permit identification. Pseudonymisation can be a useful tool for compliance with other principles such as data minimisation and security, but the storage limitation principle still applies.

How long can we keep personal data for archiving, research or statistical purposes?

You can keep personal data indefinitely if you are holding it only for:

Although the general rule is that you cannot hold personal data indefinitely ‘just in case’ it might be useful in future, there is an inbuilt exception if you are keeping it for these archiving, research or statistical purposes.

You must have appropriate safeguards in place to protect individuals. For example, pseudonymisation may be appropriate in some cases.

This must be your only purpose. If you justify indefinite retention on this basis, you cannot later use that data for another purpose - in particular for any decisions affecting particular individuals. This does not prevent other organisations from accessing public archives, but they must ensure their own collection and use of the personal data complies with the principles.

How does this apply to data sharing?

If you share personal data with other organisations, you should agree between you what happens once you no longer need to share the data. In some cases, it may be best to return the shared data to the organisation that supplied it without keeping a copy. In other cases, all of the organisations involved should delete their copies of the personal data.

Example

Personal data about the customers of Company A is shared with Company B, which is negotiating to buy Company A’s business. The companies arrange for Company B to keep the information confidential, and use it only in connection with the proposed transaction. The sale does not go ahead and Company B returns the customer information to Company A without keeping a copy.

The organisations involved in an information-sharing initiative may each need to set their own retention periods, because some may have good reasons to retain personal data for longer than others. However, if you all only hold the data for the purposes of the data-sharing initiative and it is no longer needed for that initiative, then all organisations with copies of the information should delete it.

Further reading – ICO guidance

Read our guidance on documentation and the right to erasure

Integrity and confidentiality (security)

You must ensure that you have appropriate security measures in place to protect the personal data you hold.

This is the ‘integrity and confidentiality’ principle of the GDPR – also known as the security principle.

For more information, see the security section of this guide.

Accountability principle

The accountability principle requires you to take responsibility for what you do with personal data and how you comply with the other principles.

You must have appropriate measures and records in place to be able to demonstrate your compliance.

For more information, see the accountability and governance section of this guide.

Lawful basis for processing

At a glance

Checklist

We have reviewed the purposes of our processing activities, and selected the most appropriate lawful basis (or bases) for each activity.

We have checked that the processing is necessary for the relevant purpose, and are satisfied that there is no other reasonable way to achieve that purpose.

We have documented our decision on which lawful basis applies to help us demonstrate compliance.

We have included information about both the purposes of the processing and the lawful basis for the processing in our privacy notice.

Where we process special category data, we have also identified a condition for processing special category data, and have documented this.

Where we process criminal offence data, we have also identified a condition for processing this data, and have documented this.

In brief

What are the lawful bases for processing?

The lawful bases for processing are set out in Article 6 of the GDPR. At least one of these must apply whenever you process personal data:

(a) Consent: the individual has given clear consent for you to process their personal data for a specific purpose.

(b) Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract.

(c) Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations).

(d) Vital interests: the processing is necessary to protect someone’s life.

(e) Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law.

(f) Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason to protect the individual’s personal data which overrides those legitimate interests. (This cannot apply if you are a public authority processing data to perform your official tasks.)

For more detail on each lawful basis, read the specific page of this guide.

When is processing 'necessary'?

Many of the lawful bases for processing depend on the processing being “necessary”. This does not mean that processing has to be absolutely essential. However, it must be more than just useful, and more than just standard practice. It must be a targeted and proportionate way of achieving a specific purpose. The lawful basis will not apply if you can reasonably achieve the purpose by some other less intrusive means, or by processing less data.
It is not enough to argue that processing is necessary because you have chosen to operate your business in a particular way. The question is whether the processing is objectively necessary for the stated purpose, not whether it is a necessary part of your chosen methods.

Why is the lawful basis for processing important?

The first principle requires that you process all personal data lawfully, fairly and in a transparent manner. If no lawful basis applies to your processing, your processing will be unlawful and in breach of the first principle.
Individuals also have the right to erase personal data which has been processed unlawfully.
The individual’s right to be informed under Article 13 and 14 requires you to provide people with information about your lawful basis for processing. This means you need to include these details in your privacy notice.

The lawful basis for your processing can also affect which rights are available to individuals. For example, some rights will not apply:

  

However, an individual always has the right to object to processing for the purposes of direct marketing, whatever lawful basis applies.
The remaining rights are not always absolute, and there are other rights which may be affected in other ways. For example, your lawful basis may affect how provisions relating to automated decisions and profiling apply, and if you are relying on legitimate interests you need more detail in your privacy notice.
Please read the section of this Guide on individuals’ rights for full details.

How do we decide which lawful basis applies?

This depends on your specific purposes and the context of the processing. You should think about why you want to process the data, and consider which lawful basis best fits the circumstances. You can use our interactive guidance tool to help you.

You might consider that more than one basis applies, in which case you should identify and document all of them from the start.

You must not adopt a one-size-fits-all approach. No one basis should be seen as always better, safer or more important than the others, and there is no hierarchy in the order of the list in the GDPR.

Several of the lawful bases relate to a particular specified purpose – a legal obligation, performing a contract with the individual, protecting someone’s vital interests, or performing your public tasks. If you are processing for these purposes then the appropriate lawful basis may well be obvious, so it is helpful to consider these first.

In other cases you are likely to have a choice between using legitimate interests or consent. You need to give some thought to the wider context, including:

You may prefer to consider legitimate interests as your lawful basis if you wish to keep control over the processing and take responsibility for demonstrating that it is in line with people’s reasonable expectations and wouldn’t have an unwarranted impact on them. On the other hand, if you prefer to give individuals full control over and responsibility for their data (including the ability to change their mind as to whether it can continue to be processed), you may want to consider relying on individuals’ consent.

In more detail

We have produced the lawful basis interactive guidance tool, to give more tailored guidance on which lawful basis is likely to be most appropriate for your processing activities.

Is this different for public authorities?

The basic approach is the same. You should think about your purposes, and choose whichever basis fits best. You can still use our lawful basis tool to help you.

The public task basis is more likely to be relevant to much of what you do. If you are a public authority and can demonstrate that the processing is to perform your tasks as set down in UK law, then you are able to use the public task basis. But if it is for another purpose, you can still consider another basis.

In particular, you may still be able to consider consent or legitimate interests in some cases, depending on the nature of the processing and your relationship with the individual. There is no absolute ban on public authorities using consent or legitimate interests as their lawful basis, although there are some limitations. For more information, see the specific guidance page on each lawful basis.

The Data Protection Act 2018 says that ‘public authority’ here means a public authority under the Freedom of Information Act or Freedom of Information (Scotland) Act – with the exception of parish and community councils.

Example

A university that wants to process personal data may consider a variety of lawful bases depending on what it wants to do with the data.

Universities are classified as public authorities, so the public task basis is likely to apply to much of their processing, depending on the detail of their constitutions and legal powers. If the processing is separate from their tasks as a public authority, then the university may instead wish to consider whether consent or legitimate interests are appropriate in the particular circumstances. For example, a University might rely on public task for processing personal data for teaching and research purposes; but a mixture of legitimate interests and consent for alumni relations and fundraising purposes.

The university however needs to consider its basis carefully – it is the controller’s responsibility to be able to demonstrate which lawful basis applies to the particular processing purpose.

Can we change our lawful basis?

You must determine your lawful basis before starting to process personal data. It’s important to get this right first time. If you find at a later date that your chosen basis was actually inappropriate, it will be difficult to simply swap to a different one. Even if a different basis could have applied from the start, retrospectively switching lawful basis is likely to be inherently unfair to the individual and lead to breaches of accountability and transparency requirements.

Example

A company decided to process on the basis of consent, and obtained consent from individuals. An individual subsequently decided to withdraw their consent to the processing of their data, as is their right. However, the company wanted to keep processing the data so decided to continue the processing on the basis of legitimate interests.

Even if it could have originally relied on legitimate interests, the company cannot do so at a later date – it cannot switch basis when it realised that the original chosen basis was inappropriate (in this case, because it did not want to offer the individual genuine ongoing control). It should have made clear to the individual from the start that it was processing on the basis of legitimate interests. Leading the individual to believe they had a choice is inherently unfair if that choice will be irrelevant. The company must therefore stop processing when the individual withdraws consent.

It is therefore important to thoroughly assess upfront which basis is appropriate and document this. It may be possible that more than one basis applies to the processing because you have more than one purpose, and if this is the case then you should make this clear from the start.

If there is a genuine change in circumstances or you have a new and unanticipated purpose which means there is a good reason to review your lawful basis and make a change, you need to inform the individual and document the change.

What happens if we have a new purpose?

If your purposes change over time or you have a new purpose which you did not originally anticipate, you may not need a new lawful basis as long as your new purpose is compatible with the original purpose.

However, the GDPR specifically says this does not apply to processing based on consent. Consent must always be specific and informed. You need to either get fresh consent which specifically covers the new purpose, or find a different basis for the new purpose. If you do get specific consent for the new purpose, you do not need to show it is compatible.

In other cases, in order to assess whether the new purpose is compatible with the original purpose you should take into account:

This list is not exhaustive and what you need to look at depends on the particular circumstances.

As a general rule, if the new purpose is very different from the original purpose, would be unexpected, or would have an unjustified impact on the individual, it is unlikely to be compatible with your original purpose for collecting the data. You need to identify and document a new lawful basis to process the data for that new purpose.

The GDPR specifically says that further processing for the following purposes should be considered to be compatible lawful processing operations:

There is a link here to the ‘purpose limitation’ principle in Article 5, which states that “personal data shall be collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes”.

Even if the processing for a new purpose is lawful, you will also need to consider whether it is fair and transparent, and give individuals information about the new purpose.

How should we document our lawful basis?

The principle of accountability requires you to be able to demonstrate that you are complying with the GDPR, and have appropriate policies and processes. This means that you need to be able to show that you have properly considered which lawful basis applies to each processing purpose and can justify your decision.

You need therefore to keep a record of which basis you are relying on for each processing purpose, and a justification for why you believe it applies. There is no standard form for this, as long as you ensure that what you record is sufficient to demonstrate that a lawful basis applies. This will help you comply with accountability obligations, and will also help you when writing your privacy notices.

It is your responsibility to ensure that you can demonstrate which lawful basis applies to the particular processing purpose.

Read the accountability section of this guide for more on this topic. There is also further guidance on documenting consent or legitimate interests assessments in the relevant pages of the guide.

What do we need to tell people?

You need to include information about your lawful basis (or bases, if more than one applies) in your privacy notice. Under the transparency provisions of the GDPR, the information you need to give people includes:

This applies whether you collect the personal data directly from the individual or you collect their data from another source.

Read the ‘right to be informed’ section of this guide for more on the transparency requirements of the GDPR.

What about special category data?

If you are processing special category data, you need to identify both a lawful basis for processing and a special category condition for processing in compliance with Article 9. You should document both your lawful basis for processing and your special category condition so that you can demonstrate compliance and accountability.

Further guidance can be found in the section on special category data.

What about criminal offence data?

If you are processing data about criminal convictions, criminal offences or related security measures, you need both a lawful basis for processing, and either ‘official authority’ or a separate condition for processing this data in compliance with Article 10. You should document both your lawful basis for processing and your criminal offence data condition so that you can demonstrate compliance and accountability.

Further guidance can be found in the section on criminal offence data.

Consent

At a glance

Checklists

Asking for consent

We have checked that consent is the most appropriate lawful basis for processing.

We have made the request for consent prominent and separate from our terms and conditions.

We ask people to positively opt in.

We don’t use pre-ticked boxes or any other type of default consent.

We use clear, plain language that is easy to understand.

We specify why we want the data and what we’re going to do with it.

We give separate distinct (‘granular’) options to consent separately to different purposes and types of processing.

We name our organisation and any third party controllers who will be relying on the consent.

We tell individuals they can withdraw their consent.

We ensure that individuals can refuse to consent without detriment.

We avoid making consent a precondition of a service.

If we offer online services directly to children, we only seek consent if we have age-verification measures (and parental-consent measures for younger children) in place.

Recording consent

We keep a record of when and how we got consent from the individual.

We keep a record of exactly what they were told at the time.

Managing consent

We regularly review consents to check that the relationship, the processing and the purposes have not changed.

We have processes in place to refresh consent at appropriate intervals, including any parental consents.

We consider using privacy dashboards or other preference-management tools as a matter of good practice.

We make it easy for individuals to withdraw their consent at any time, and publicise how to do so.

We act on withdrawals of consent as soon as we can.

We don’t penalise individuals who wish to withdraw consent.

In brief

What's new?

The GDPR sets a high standard for consent, but the biggest change is what this means in practice for your consent mechanisms.

The GDPR is clearer that an indication of consent must be unambiguous and involve a clear affirmative action (an opt-in). It specifically bans pre-ticked opt-in boxes. It also requires distinct (‘granular’) consent options for distinct processing operations. Consent should be separate from other terms and conditions and should not generally be a precondition of signing up to a service.

You must keep clear records to demonstrate consent.

The GDPR gives a specific right to withdraw consent. You need to tell people about their right to withdraw, and offer them easy ways to withdraw consent at any time.

Public authorities, employers and other organisations in a position of power may find it more difficult to show valid freely given consent.

You need to review existing consents and your consent mechanisms to check they meet the GDPR standard. If they do, there is no need to obtain fresh consent.

Why is consent important?

Consent is one lawful basis for processing, and explicit consent can also legitimise use of special category data. Consent may also be relevant where the individual has exercised their right to restriction, and explicit consent can legitimise automated decision-making and overseas transfers of data.

Genuine consent should put individuals in control, build trust and engagement, and enhance your reputation.

Relying on inappropriate or invalid consent could destroy trust and harm your reputation – and may leave you open to large fines.

When is consent appropriate?

Consent is one lawful basis for processing, but there are alternatives. Consent is not inherently better or more important than these alternatives. If consent is difficult, you should consider using an alternative.

Consent is appropriate if you can offer people real choice and control over how you use their data, and want to build their trust and engagement. But if you cannot offer a genuine choice, consent is not appropriate. If you would still process the personal data without consent, asking for consent is misleading and inherently unfair.

If you make consent a precondition of a service, it is unlikely to be the most appropriate lawful basis.

Public authorities, employers and other organisations in a position of power over individuals should avoid relying on consent unless they are confident they can demonstrate it is freely given.

What is valid consent?

Consent must be freely given; this means giving people genuine ongoing choice and control over how you use their data.

Consent should be obvious and require a positive action to opt in. Consent requests must be prominent, unbundled from other terms and conditions, concise and easy to understand, and user-friendly.

Consent must specifically cover the controller’s name, the purposes of the processing and the types of processing activity.

Explicit consent must be expressly confirmed in words, rather than by any other positive action.

There is no set time limit for consent. How long it lasts will depend on the context. You should review and refresh consent as appropriate.

How should we obtain, record and manage consent?

Make your consent request prominent, concise, separate from other terms and conditions, and easy to understand. Include:

You must ask people to actively opt in. Don’t use pre-ticked boxes, opt-out boxes or other default settings. Wherever possible, give separate (‘granular’) options to consent to different purposes and different types of processing.

Keep records to evidence consent – who consented, when, how, and what they were told.

Make it easy for people to withdraw consent at any time they choose. Consider using preference-management tools.

Keep consents under review and refresh them if anything changes. Build regular consent reviews into your business processes.

In more detail - ICO guidance

We have produced more detailed guidance on consent.

We have produced an interactive guidance tool to give tailored guidance on which lawful basis is likely to be most appropriate for your processing activities.

 

In more detail - European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

WP29 adopted Guidelines on consent, which have been endorsed by the EDPB.

Contract

At a glance

In brief

What's new?

Very little. The lawful basis for processing necessary for contracts is almost identical to the old condition for processing in paragraph 2 of Schedule 2 of the 1998 Act.

You need to review your existing processing so that you can document where you rely on this basis and inform individuals. But in practice, if you are confident that your existing approach complied with the 1998 Act, you are unlikely to need to change your existing basis for processing.

What does the GDPR say?

Article 6(1)(b) gives you a lawful basis for processing where:

“processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract”

When is the lawful basis for contracts likely to apply?

You have a lawful basis for processing if:

It does not apply if you need to process one person’s details but the contract is with someone else. 

It does not apply if you take pre-contractual steps on your own initiative or at the request of a third party.

Example

An individual shopping around for car insurance requests a quotation. The insurer needs to process certain data in order to prepare the quotation, such as the make and age of the car.

Note that, in this context, a contract does not have to be a formal signed document, or even written down, as long as there is an agreement which meets the requirements of contract law. Broadly speaking, this means that the terms have been offered and accepted, you both intend them to be legally binding, and there is an element of exchange (usually an exchange of goods or services for money, but this can be anything of value). However, this is not a full explanation of contract law, and if in doubt you should seek your own legal advice.

When is processing ‘necessary’ for a contract?                                

‘Necessary’ does not mean that the processing must be essential for the purposes of performing a contract or taking relevant pre-contractual steps. However, it must be a targeted and proportionate way of achieving that purpose. This lawful basis does not apply if there are other reasonable and less intrusive ways to meet your contractual obligations or take the steps requested.

The processing must be necessary to deliver your side of the contract with this particular person. If the processing is only necessary to maintain your business model more generally, this lawful basis will not apply and you should consider another lawful basis, such as legitimate interests.

Example

When a data subject makes an online purchase, a controller processes the address of the individual in order to deliver the goods. This is necessary in order to perform the contract.

However, the profiling of an individual’s interests and preferences based on items purchased is not necessary for the performance of the contract and the controller cannot rely on Article 6(1)(b) as the lawful basis for this processing. Even if this type of targeted advertising is a useful part of your customer relationship and is a necessary part of your business model, it is not necessary to perform the contract itself.

This does not mean that processing which is not necessary for the contract is automatically unlawful, but rather that you need to look for a different lawful basis.

What else should we consider?

If the processing is necessary for a contract with the individual, processing is lawful on this basis and you do not need to get separate consent.

If processing of special category data is necessary for the contract, you also need to identify a separate condition for processing this data. Read our guidance on special category data for more information.                              

If the contract is with a child under 18, you need to consider whether they have the necessary competence to enter into a contract. If you have doubts about their competence, you may wish to consider an alternative basis such as legitimate interests, which can help you to demonstrate that the child’s rights and interests are properly considered and protected. Read our guidance on children and the GDPR for more information.

If the processing is not necessary for the contract, you need to consider another lawful basis such as legitimate interests or consent. Note that if you want to rely on consent you will not generally be able to make the processing a condition of the contract. Read our guidance on consent for more information.

If you are processing on the basis of contract, the individual’s right to object and right not to be subject to a decision based solely on automated processing will not apply. However, the individual will have a right to data portability. Read our guidance on individual rights for more information.

Remember to document your decision that processing is necessary for the contract, and include information about your purposes and lawful basis in your privacy notice.

 

In more detail - ICO guidance

We have produced the lawful basis interactive guidance tool, to give tailored guidance on which lawful basis is likely to be most appropriate for your processing activities.

Legal obligation

At a glance

In brief

What’s new?

Very little. The lawful basis for processing necessary for compliance with a legal obligation is almost identical to the old condition for processing in paragraph 3 of Schedule 2 of the 1998 Act.

You need to review your existing processing so that you can document where you rely on this basis and inform individuals. But in practice, if you are confident that your existing approach complied with the 1998 Act, you are unlikely to need to change your existing basis for processing.

What does the GDPR say? 

Article 6(1)(c) provides a lawful basis for processing where:

“processing is necessary for compliance with a legal obligation to which the controller is subject.”

When is the lawful basis for legal obligations likely to apply?

In short, when you are obliged to process the personal data to comply with the law.

Article 6(3) requires that the legal obligation must be laid down by UK or EU law. Recital 41 confirms that this does not have to be an explicit statutory obligation, as long as the application of the law is foreseeable to those individuals subject to it. So it includes clear common law obligations.

This does not mean that there must be a legal obligation specifically requiring the specific processing activity. The point is that your overall purpose must be to comply with a legal obligation which has a sufficiently clear basis in either common law or statute.

You should be able to identify the obligation in question, either by reference to the specific legal provision or else by pointing to an appropriate source of advice or guidance that sets it out clearly. For example, you can refer to a government website or to industry guidance that explains generally applicable legal obligations.

Example 

An employer needs to process personal data to comply with its legal obligation to disclose employee salary details to HMRC.

The employer can point to the HMRC website where the requirements are set out to demonstrate this obligation. In this situation it is not necessary to cite each specific piece of legislation.

Example

A financial institution relies on the legal obligation imposed by the Part 7 of Proceeds of Crime Act 2002 to process personal data in order submit a Suspicious Activity Report to the National Crime Agency when it knows or suspects that a person is engaged in, or attempting, money laundering.

Example

A court order may require you to process personal data for a particular purpose and this also qualifies as a legal obligation.

Regulatory requirements also qualify as a legal obligation for these purposes where there is a statutory basis underpinning the regulatory regime and which requires regulated organisations to comply.

Example

The Competition and Markets Authority (CMA) has powers under The Enterprise Act 2002 to make orders to remedy adverse effects on competition, some of which may require the processing of personal data.

A retail energy supplier passes customer data to the Gas and Electricity Markets Authority to comply with the CMA’s Energy Market Investigation (Database) Order 2016. The supplier may rely on legal obligation as the lawful basis for this processing.

A contractual obligation does not comprise a legal obligation in this context. You cannot contract out of the requirement for a lawful basis. However, you can look for a different lawful basis. If the contract is with the individual you can consider the lawful basis for contracts. For contracts with other parties, you may want to consider legitimate interests.

When is processing ‘necessary’ for compliance?

Although the processing need not be essential for you to comply with the legal obligation, it must be a reasonable and proportionate way of achieving compliance. You cannot rely on this lawful basis if you have discretion over whether to process the personal data, or if there is another reasonable way to comply.

It is likely to be clear from the law in question whether the processing is actually necessary for compliance.

What else should we consider?

If you are processing on the basis of legal obligation, the individual has no right to erasure, right to data portability, or right to object. Read our guidance on individual rights for more information.

Remember to:

 

In more detail - ICO guidance

We have produced the lawful basis interactive guidance tool, to give tailored guidance on which lawful basis is likely to be most appropriate for your processing activities.

Vital interests

At a glance

In brief

What’s new?

The lawful basis for vital interests is very similar to the old condition for processing in paragraph 4 of Schedule 2 of the 1998 Act. One key difference is that anyone’s vital interests can now provide a basis for processing, not just those of the data subject themselves. 

You need to review your existing processing to identify if you have any ongoing processing for this reason, or are likely to need to process for this reason in future. You should then document where you rely on this basis and inform individuals if relevant.

What does the GDPR say?

Article 6(1)(d) provides a lawful basis for processing where:

“processing is necessary in order to protect the vital interests of the data subject or of another natural person”.

Recital 46 provides some further guidance:

“The processing of personal data should also be regarded as lawful where it is necessary to protect an interest which is essential for the life of the data subject or that of another natural person. Processing of personal data based on the vital interest of another natural person should in principle take place only where the processing cannot be manifestly based on another legal basis…”

What are ‘vital interests’?

It’s clear from Recital 46 that vital interests are intended to cover only interests that are essential for someone’s life. So this lawful basis is very limited in its scope, and generally only applies to matters of life and death.

When is the vital interests basis likely to apply?

It is likely to be particularly relevant for emergency medical care, when you need to process personal data for medical purposes but the individual is incapable of giving consent to the processing.

Example

An individual is admitted to the A & E department of a hospital with life-threatening injuries following a serious road accident. The disclosure to the hospital of the individual’s medical history is necessary in order to protect his/her vital interests.

It is less likely to be appropriate for medical care that is planned in advance. Another lawful basis such as public task or legitimate interests  is likely to be more appropriate in this case.

Processing of one individual’s personal data to protect the vital interests of others is likely to happen more rarely. It may be relevant, for example, if it is necessary to process a parent’s personal data to protect the vital interests of a child.

Vital interests is also less likely to be the appropriate basis for processing on a larger scale.  Recital 46 does suggest that vital interests might apply where you are processing on humanitarian grounds such as monitoring epidemics, or where there is a natural or man-made disaster causing a humanitarian emergency.

However, if you are processing one person’s personal data to protect someone else’s life, Recital 46 also indicates that you should generally try to use an alternative lawful basis, unless none is obviously available. For example, in many cases you could consider legitimate interests, which will give you a framework to balance the rights and interests of the data subject(s) with the vital interests of the person or people you are trying to protect.

What else should we consider?

In most cases the protection of vital interests is likely to arise in the context of health data. This is one of the special categories of data, which means you will also need to identify a condition for processing special category data under Article 9.

There is a specific condition at Article 9(2)(c) for processing special category data where necessary to protect someone’s vital interests. However, this only applies if the data subject is physically or legally incapable of giving consent. This means explicit consent is more appropriate in many cases, and you cannot in practice rely on vital interests for special category data (including health data) if the data subject refuses consent, unless they are not competent to do so.

 

In more detail - ICO guidance

We have produced the lawful basis interactive guidance tool, to give tailored guidance on which lawful basis is likely to be most appropriate for your processing activities.

Public task

At a glance

In brief

What's new under the GDPR?

The public task basis in Article 6(1)(e) may appear new, but it is similar to the old condition for processing for functions of a public nature in Schedule 2 of the Data Protection Act 1998.

One key difference is that the GDPR says that the relevant task or function must have a clear basis in law.

The GDPR is also clear that public authorities can no longer rely on legitimate interests for processing carried out in performance of their tasks. In the past, some of this type of processing may have been done on the basis of legitimate interests. If you are a public authority, this means you may now need to consider the public task basis for more of your processing.

The GDPR also brings in new accountability requirements. You should document your lawful basis so that you can demonstrate that it applies. In particular, you should be able to identify a clear basis in either statute or common law for the relevant task, function or power for which you are using the personal data.

You must also update your privacy notice to include your lawful basis, and communicate this to individuals.

What is the ‘public task’ basis?

Article 6(1)(e) gives you a lawful basis for processing where:

“processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller”

This can apply if you are either:

If you can show you are exercising official authority, including use of discretionary powers, there is no additional public interest test. However, you must be able to demonstrate that the processing is ‘necessary’ for that purpose.

‘Necessary’ means that the processing must be a targeted and proportionate way of achieving your purpose. You do not have a lawful basis for processing if there is another reasonable and less intrusive way to achieve the same result.  

In this guide we use the term ‘public task’ to help describe and label this lawful basis. However, this is not a term used in the GDPR itself. Your focus should be on demonstrating either that you are carrying out a task in the public interest, or that you are exercising official authority.

In particular, there is no direct link to the concept of ‘public task’ in the Re-use of Public Sector Information Regulations 2015 (RPSI). There is some overlap, as a public sector body’s core role and functions for RPSI purposes may be a useful starting point in demonstrating official authority for these purposes. However, you shouldn’t assume that it is an identical test. See our Guide to RPSI for more on public task in the context of RPSI.

What does ‘laid down by law’ mean?

Article 6(3) requires that the relevant task or authority must be laid down by domestic or EU law. This will most often be a statutory function. However, Recital 41 clarifies that this does not have to be an explicit statutory provision, as long as the application of the law is clear and foreseeable. This means that it includes clear common law tasks, functions or powers as well as those set out in statute or statutory guidance.

You do not need specific legal authority for the particular processing activity. The point is that your overall purpose must be to perform a public interest task or exercise official authority, and that overall task or authority has a sufficiently clear basis in law.

Who can rely on this basis?

Any organisation who is exercising official authority or carrying out a specific task in the public interest. The focus is on the nature of the function, not the nature of the organisation.

Example

Private water companies are likely to be able to rely on the public task basis even if they do not fall within the definition of a public authority in the Data Protection Act 2018. This is because they are considered to be carrying out functions of public administration and they exercise special legal powers to carry out utility services in the public interest. See our guidance on Public authorities under the EIR for more details.

However, if you are a private sector organisation you are likely to be able to consider the legitimate interests basis as an alternative.             

See the main lawful basis page of this guide for more on how to choose the most appropriate basis.

When can we rely on this basis?    

Section 8 of the Data Protection Act 2018 (DPA 2018) says that the public task basis will cover processing necessary for:

However, this is not intended as an exhaustive list. If you have other official non-statutory functions or public interest tasks you can still rely on the public task basis, as long as the underlying legal basis for that function or task is clear and foreseeable.        

For accountability purposes, you should be able to specify the relevant task, function or power, and identify its basis in common law or statute. You should also ensure that you can demonstrate there is no other reasonable and less intrusive means to achieve your purpose.

What else should we consider?

Individuals’ rights to erasure and data portability do not apply if you are processing on the basis of public task. However, individuals do have a right to object. See our guidance on individual rights for more information.          

You should consider an alternative lawful basis if you are not confident that processing is necessary for a relevant task, function or power which is clearly set out in law.

If you are a public authority (as defined in the Data Protection Act 2018), your ability to rely on consent or legitimate interests as an alternative basis is more limited, but they may be available in some circumstances. In particular, legitimate interests is still available for processing which falls outside your tasks as a public authority. Other lawful bases may also be relevant. See our guidance on the other lawful bases for more information.

Remember that the GDPR specifically says that further processing for certain purposes should be considered to be compatible with your original purpose. This means that if you originally processed the personal data for a relevant task or function, you do not need a separate lawful basis for any further processing for:

If you are processing special category data, you also need to identify an additional condition for processing this type of data. The Data Protection Act 2018 includes specific conditions for parliamentary, statutory or governmental functions in the substantial public interest. Read the special category data page of this guide for our latest guidance on these provisions.

To help you meet your accountability and transparency obligations, remember to:

In more detail – ICO guidance

We are planning to develop more detailed guidance on this topic. 

We have produced the lawful basis interactive guidance tool, to give tailored guidance on which lawful basis is likely to be most appropriate for your processing activities.

Legitimate interests

At a glance

Checklists

We have checked that legitimate interests is the most appropriate basis.

We understand our responsibility to protect the individual’s interests.

We have conducted a legitimate interests assessment (LIA) and kept a record of it, to ensure that we can justify our decision.

We have identified the relevant legitimate interests.

 We have checked that the processing is necessary and there is no less intrusive way to achieve the same result.

We have done a balancing test, and are confident that the individual’s interests do not override those legitimate interests.

We only use individuals’ data in ways they would reasonably expect, unless we have a very good reason.

We are not using people’s data in ways they would find intrusive or which could cause them harm, unless we have a very good reason.

If we process children’s data, we take extra care to make sure we protect their interests.

We have considered safeguards to reduce the impact where possible.

We have considered whether we can offer an opt out.

If our LIA identifies a significant privacy impact, we have considered whether we also need to conduct a DPIA.

We keep our LIA under review, and repeat it if circumstances change.

We include information about our legitimate interests in our privacy information.

In brief

What’s new under the GDPR?

The concept of legitimate interests as a lawful basis for processing is essentially the same as the equivalent Schedule 2 condition in the 1998 Act, with some changes in detail.

You can now consider the legitimate interests of any third party, including wider benefits to society. And when weighing against the individual’s interests, the focus is wider than the emphasis on ‘unwarranted prejudice’ to the individual in the 1998 Act. For example, unexpected processing is likely to affect whether the individual’s interests override your legitimate interests, even without specific harm.

The GDPR is clearer that you must give particular weight to protecting children’s data.

Public authorities are more limited in their ability to rely on legitimate interests, and should consider the ‘public task’ basis instead for any processing they do to perform their tasks as a public authority. Legitimate interests may still be available for other legitimate processing outside of those tasks.

The biggest change is that you need to document your decisions on legitimate interests so that you can demonstrate compliance under the new GDPR accountability principle. You must also include more information in your privacy information.

In the run up to 25 May 2018, you need to review your existing processing to identify your lawful basis and document where you rely on legitimate interests, update your privacy information, and communicate it to individuals.

What is the ‘legitimate interests’ basis?

Article 6(1)(f) gives you a lawful basis for processing where:

“processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.”

This can be broken down into a three-part test:

  1. Purpose test: are you pursuing a legitimate interest?
  2. Necessity test: is the processing necessary for that purpose?
  3. Balancing test: do the individual’s interests override the legitimate interest?

A wide range of interests may be legitimate interests. They can be your own interests or the interests of third parties, and commercial interests as well as wider societal benefits. They may be compelling or trivial, but trivial interests may be more easily overridden in the balancing test.

The GDPR specifically mentions use of client or employee data, marketing, fraud prevention, intra-group transfers, or IT security as potential legitimate interests, but this is not an exhaustive list. It also says that you have a legitimate interest in disclosing information about possible criminal acts or security threats to the authorities.

‘Necessary’ means that the processing must be a targeted and proportionate way of achieving your purpose. You cannot rely on legitimate interests if there is another reasonable and less intrusive way to achieve the same result.                      

You must balance your interests against the individual’s interests. In particular, if they would not reasonably expect you to use data in that way, or it would cause them unwarranted harm, their interests are likely to override yours. However, your interests do not always have to align with the individual’s interests. If there is a conflict, your interests can still prevail as long as there is a clear justification for the impact on the individual.

When can we rely on legitimate interests?

Legitimate interests is the most flexible lawful basis, but you cannot assume it will always be appropriate for all of your processing.

If you choose to rely on legitimate interests, you take on extra responsibility for ensuring people’s rights and interests are fully considered and protected.

Legitimate interests is most likely to be an appropriate basis where you use data in ways that people would reasonably expect and that have a minimal privacy impact. Where there is an impact on individuals, it may still apply if you can show there is an even more compelling benefit to the processing and the impact is justified.

You can rely on legitimate interests for marketing activities if you can show that how you use people’s data is proportionate, has a minimal privacy impact, and people would not be surprised or likely to object – but only if you don’t need consent under PECR. See our Guide to PECR for more on when you need consent for electronic marketing.

You can consider legitimate interests for processing children’s data, but you must take extra care to make sure their interests are protected. See our detailed guidance on children and the GDPR.

You may be able to rely on legitimate interests in order to lawfully disclose personal data to a third party. You should consider why they want the information, whether they actually need it, and what they will do with it. You need to demonstrate that the disclosure is justified, but it will be their responsibility to determine their lawful basis for their own processing.

You should avoid using legitimate interests if you are using personal data in ways people do not understand and would not reasonably expect, or if you think some people would object if you explained it to them. You should also avoid this basis for processing that could cause harm, unless you are confident there is nevertheless a compelling reason to go ahead which justifies the impact.

If you are a public authority, you cannot rely on legitimate interests for any processing you do to perform your tasks as a public authority. However, if you have other legitimate purposes outside the scope of your tasks as a public authority, you can consider legitimate interests where appropriate. This will be particularly relevant for public authorities with commercial interests.

See our guidance page on the lawful basis for more information on the alternatives to legitimate interests, and how to decide which basis to choose.

How can we apply legitimate interests in practice?

If you want to rely on legitimate interests, you can use the three-part test to assess whether it applies. We refer to this as a legitimate interests assessment (LIA) and you should do it before you start the processing.

An LIA is a type of light-touch risk assessment based on the specific context and circumstances. It will help you ensure that your processing is lawful. Recording your LIA will also help you demonstrate compliance in line with your accountability obligations under Articles 5(2) and 24. In some cases an LIA will be quite short, but in others there will be more to consider.

First, identify the legitimate interest(s). Consider:

Second, apply the necessity test. Consider:

Third, do a balancing test. Consider the impact of your processing and whether this overrides the interest you have identified. You might find it helpful to think about the following:

You then need to make a decision about whether you still think legitimate interests is an appropriate basis. There’s no foolproof formula for the outcome of the balancing test – but you must be confident that your legitimate interests are not overridden by the risks you have identified.

Keep a record of your LIA and the outcome. There is no standard format for this, but it’s important to record your thinking to help show you have proper decision-making processes in place and to justify the outcome.

Keep your LIA under review and refresh it if there is a significant change in the purpose, nature or context of the processing.

If you are not sure about the outcome of the balancing test, it may be safer to look for another lawful basis. Legitimate interests will not often be the most appropriate basis for processing which is unexpected or high risk.

If your LIA identifies significant risks, consider whether you need to do a DPIA to assess the risk and potential mitigation in more detail. See our guidance on DPIAs for more on this.

What else do we need to consider?

You must tell people in your privacy information that you are relying on legitimate interests, and explain what these interests are.

If you want to process the personal data for a new purpose, you may be able to continue processing under legitimate interests as long as your new purpose is compatible with your original purpose. We would still recommend that you conduct a new LIA, as this will help you demonstrate compatibility.

If you rely on legitimate interests, the right to data portability does not apply.

If you are relying on legitimate interests for direct marketing, the right to object is absolute and you must stop processing when someone objects. For other purposes, you must stop unless you can show that your legitimate interests are compelling enough to override the individual’s rights. See our guidance on individual rights for more on this.

In more detail – ICO guidance

We have produced more detailed guidance on legitimate interests

We have produced the lawful basis interactive guidance tool, to give tailored guidance on which lawful basis is likely to be most appropriate for your processing activities.

 

In more detail - European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

There are no immediate plans for EDPB guidance on legitimate interests under the GDPR, but WP29 Opinion 06/2014 (9 April 2014) gives detailed guidance on the key elements of the similar legitimate interests provisions under the previous Data Protection Directive 95/46/EC.

 

Special category data

At a glance

In brief

What's new?

Special category data is broadly similar to the concept of sensitive personal data under the 1998 Act. The requirement to identify a specific condition for processing this type of data is also very similar.

One change is that the GDPR includes genetic data and some biometric data in the definition. Another is that it does not include personal data relating to criminal offences and convictions, as there are separate and specific safeguards for this type of data in Article 10.

The conditions for processing special category data under the GDPR in the UK are broadly similar to the Schedule 3 conditions under the 1998 Act for the processing of sensitive personal data. More detailed guidance on the new special category conditions in the Data Protection Act 2018 - and how they differ from existing Schedule 3 conditions - will follow in due course.

What’s different about special category data?

You must still have a lawful basis for your processing under Article 6, in exactly the same way as for any other personal data. The difference is that you will also need to satisfy a specific condition under Article 9.

This is because special category data is more sensitive, and so needs more protection. For example, information about an individual’s:

In particular, this type of data could create more significant risks to a person’s fundamental rights and freedoms. For example, by putting them at risk of unlawful discrimination.

Your choice of lawful basis under Article 6 does not dictate which special category condition you must apply, and vice versa. For example, if you use consent as your lawful basis, you are not restricted to using explicit consent for special category processing under Article 9. You should choose whichever special category condition is the most appropriate in the circumstances – although in many cases there may well be an obvious link between the two. For example, if your lawful basis is vital interests, it is highly likely that the Article 9 condition for vital interests will also be appropriate.

What are the conditions for processing special category data?

The conditions are listed in Article 9(2) of the GDPR:

(a) the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union or Member State law provide that the prohibition referred to in paragraph 1 may not be lifted by the data subject;

(b) processing is necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment and social security and social protection law in so far as it is authorised by Union or Member State law or a collective agreement pursuant to Member State law providing for appropriate safeguards for the fundamental rights and the interests of the data subject;

(c) processing is necessary to protect the vital interests of the data subject or of another natural person where the data subject is physically or legally incapable of giving consent;

(d) processing is carried out in the course of its legitimate activities with appropriate safeguards by a foundation, association or any other not-for-profit body with a political, philosophical, religious or trade union aim and on condition that the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes and that the personal data are not disclosed outside that body without the consent of the data subjects;

(e) processing relates to personal data which are manifestly made public by    the data subject;

(f)  processing is necessary for the establishment, exercise or defence of legal claims or whenever courts are acting in their judicial capacity;

(g) processing is necessary for reasons of substantial public interest, on the basis of Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject;

(h) processing is necessary for the purposes of preventive or occupational medicine, for the assessment of the working capacity of the employee, medical diagnosis, the provision of health or social care or treatment or the management of health or social care systems and services on the basis of Union or Member State law or pursuant to contract with a health professional and subject to the conditions and safeguards referred to in paragraph 3;

(i)  processing is necessary for reasons of public interest in the area of public health, such as protecting against serious cross-border threats to health or ensuring high standards of quality and safety of health care and of medicinal products or medical devices, on the basis of Union or Member State law which provides for suitable and specific measures to safeguard the rights and freedoms of the data subject, in particular professional secrecy;

(j)  processing is necessary for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) based on Union or Member State law which shall be proportionate to the aim pursued, respect the essence of the right to data protection and provide for suitable and specific measures to safeguard the fundamental rights and the interests of the data subject.

You need to read these alongside the Data Protection Act 2018, which adds more specific conditions and safeguards:

Now that the detail of these provisions has been finalised, we are working on more detailed guidance in this area.

Criminal offence data

At a glance

In brief

What’s new?

The GDPR rules for sensitive (special category) data do not apply to information about criminal allegations, proceedings or convictions. Instead, there are separate safeguards for personal data relating to criminal convictions and offences, or related security measures, set out in Article 10.

Article 10 also specifies that you can only keep a comprehensive register of criminal convictions if you are doing so under the control of official authority.

What is criminal offence data?

Article 10 applies to personal data relating to criminal convictions and offences, or related security measures. In this guidance, we refer to this as criminal offence data.

This concept of criminal offence data includes the type of data about criminal allegations, proceedings or convictions that would have been sensitive personal data under the 1998 Act. However, it is potentially broader than this. In particular, Article 10 specifically extends to personal data linked to related security measures.

What’s different about criminal offence data?

You must still have a lawful basis for your processing under Article 6, in exactly the same way as for any other personal data. The difference is that if you are processing personal criminal offence data, you will also need to comply with Article 10.

What does Article 10 say?

Article 10 says:

“Processing of personal data relating to criminal convictions and offences or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorised by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. Any comprehensive register of criminal convictions shall be kept only under the control of official authority.”

This means you must either:

Even if you have a condition for processing offence data, you can only keep a comprehensive register of criminal convictions if you are doing so in an official capacity.

Individual rights

The GDPR provides the following rights for individuals:

  1. The right to be informed
  2. The right of access
  3. The right to rectification
  4. The right to erasure
  5. The right to restrict processing
  6. The right to data portability
  7. The right to object
  8. Rights in relation to automated decision making and profiling.

This part of the guide explains these rights.

Right to be informed

At a glance

Checklists

What to provide

We provide individuals with all the following privacy information:

☐ The name and contact details of our organisation.

☐ The name and contact details of our representative (if applicable).

☐ The contact details of our data protection officer (if applicable).

☐ The purposes of the processing.

☐ The lawful basis for the processing.

☐ The legitimate interests for the processing (if applicable).

☐ The categories of personal data obtained (if the personal data is not obtained from the individual it relates to).

☐ The recipients or categories of recipients of the personal data.

☐ The details of transfers of the personal data to any third countries or international organisations (if applicable).

☐ The retention periods for the personal data.

☐ The rights available to individuals in respect of the processing.

☐ The right to withdraw consent (if applicable).

☐ The right to lodge a complaint with a supervisory authority.

☐ The source of the personal data (if the personal data is not obtained from the individual it relates to).

☐ The details of whether individuals are under a statutory or contractual obligation to provide the personal data (if applicable, and if the personal data is collected from the individual it relates to).

☐ The details of the existence of automated decision-making, including profiling (if applicable).


When to provide it

☐ We provide individuals with privacy information at the time we collect their personal data from them.

If we obtain personal data from a source other than the individual it relates to, we provide them with privacy information:

☐ within a reasonable of period of obtaining the personal data and no later than one month;

☐ if we plan to communicate with the individual, at the latest, when the first communication takes place; or

☐ if we plan to disclose the data to someone else, at the latest, when the data is disclosed.


How to provide it

We provide the information in a way that is: 

☐ concise;

☐ transparent;

☐ intelligible;

☐ easily accessible; and

☐ uses clear and plain language.


Changes to the information

☐ We regularly review and, where necessary, update our privacy information.

☐ If we plan to use personal data for a new purpose, we update our privacy information and communicate the changes to individuals before starting any new processing.


Best practice – drafting the information

☐ We undertake an information audit to find out what personal data we hold and what we do with it.

☐ We put ourselves in the position of the people we’re collecting information about.

☐ We carry out user testing to evaluate how effective our privacy information is.

Best practice – delivering the information

When providing our privacy information to individuals, we use a combination of appropriate techniques, such as:

☐ a layered approach;

☐ dashboards;

☐ just-in-time notices;

☐ icons; and

☐ mobile and smart device functionalities.

 In brief

What’s new under the GDPR?

The GDPR is more specific about the information you need to provide to people about what you do with their personal data.

You must actively provide this information to individuals in a way that is easy to access, read and understand.

You should review your current approach for providing privacy information to check it meets the standards of the GDPR.

What is the right to be informed and why is it important?

The right to be informed covers some of the key transparency requirements of the GDPR. It is about providing individuals with clear and concise information about what you do with their personal data.

Articles 13 and 14 of the GDPR specify what individuals have the right to be informed about. We call this ‘privacy information’.

Using an effective approach can help you to comply with other aspects of the GDPR, foster trust with individuals and obtain more useful information from them.

Getting this wrong can leave you open to fines and lead to reputational damage.

What privacy information should we provide to individuals?

The table below summarises the information that you must provide. What you need to tell people differs slightly depending on whether you collect personal data from the individual it relates to or obtain it from another source.

What information do we need to provide? Personal data collected from individuals Personal data obtained from other sources
The name and contact details of your organisation
The name and contact details of your representative
The contact details of your data protection officer
The purposes of the processing ✓ 
The lawful basis for the processing
The legitimate interests for the processing
The categories of personal data obtained  
The recipients or categories of recipients of the personal data ✓ 
The details of transfers of the personal data to any third countries or international organisations ✓  ✓ 
The retention periods for the personal data ✓ 
The rights available to individuals in respect of the processing ✓ 
The right to withdraw consent
The right to lodge a complaint with a supervisory authority ✓ 
The source of the personal data  
The details of whether individuals are under a statutory or contractual obligation to provide the personal data  
The details of the existence of automated decision-making, including profiling

When should we provide privacy information to individuals?

When you collect personal data from the individual it relates to, you must provide them with privacy information at the time you obtain their data.

When you obtain personal data from a source other than the individual it relates to, you need to provide the individual with privacy information:

You must actively provide privacy information to individuals. You can meet this requirement by putting the information on your website, but you must make individuals aware of it and give them an easy way to access it.

When collecting personal data from individuals, you do not need to provide them with any information that they already have.

When obtaining personal data from other sources, you do not need to provide individuals with privacy information if:

How should we draft our privacy information?

An information audit or data mapping exercise can help you find out what personal data you hold and what you do with it.

You should think about the intended audience for your privacy information and put yourself in their position.

If you collect or obtain children’s personal data, you must take particular care to ensure that the information you provide them with is appropriately written, using clear and plain language.

For all audiences, you must provide information to them in a way that is:

How should we provide privacy information to individuals?

There are a number of techniques you can use to provide people with privacy information. You can use:

Consider the context in which you are collecting personal data. It is good practice to use the same medium you use to collect personal data to deliver privacy information.

Taking a blended approach, using more than one of these techniques, is often the most effective way to provide privacy information.

Should we test, review and update our privacy information?

It is good practice to carry out user testing on your draft privacy information to get feedback on how easy it is to access and understand.

After it is finalised, undertake regular reviews to check it remains accurate and up to date.

If you plan to use personal data for any new purposes, you must update your privacy information and proactively bring any changes to people’s attention.

The right to be informed in practice

If you sell personal data to (or share it with) other organisations:

If you buy personal data from other organisations:

If you obtain personal data from publicly accessible sources:

If you apply Artificial Intelligence (AI) to personal data:

In more detail – ICO guidance

We have published detailed guidance on the right to be informed.

 

In more detail – European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

WP29 adopted guidelines on Transparency, which have been endorsed by the EDPB.

Right of access

At a glance

Checklists

Preparing for subject access requests

We know how to recognise a subject access request and we understand when the right of access applies.

We have a policy for how to record requests we receive verbally.

We understand when we can refuse a request and are aware of the information we need to provide to individuals when we do so.

We understand the nature of the supplementary information we need to provide in response to a subject access request.

Complying with subject access requests

We have processes in place to ensure that we respond to a subject access request without undue delay and within one month of receipt.

We are aware of the circumstances when we can extend the time limit to respond to a request.

We understand that there is a particular emphasis on using clear and plain language if we are disclosing information to a child.

We understand what we need to consider if a request includes information about others.

In brief

What is the right of access?

The right of access, commonly referred to as subject access, gives individuals the right to obtain a copy of their personal data as well as other supplementary information. It helps individuals to understand how and why you are using their data, and check you are doing it lawfully.

What is an individual entitled to?                    

Individuals have the right to obtain the following from you:

Personal data of the individual

An individual is only entitled to their own personal data, and not to information relating to other people (unless the information is also about them or they are acting on behalf of someone). Therefore, it is important that you establish whether the information requested falls within the definition of personal data. For further information about the definition of personal data please see our guidance on what is personal data.

Other information

In addition to a copy of their personal data, you also have to provide individuals with the following information:

You may be providing much of this information already in your privacy notice.

How do we recognise a request?

The GDPR does not specify how to make a valid request. Therefore, an individual can make a subject access request to you verbally or in writing. It can also be made to any part of your organisation (including by social media) and does not have to be to a specific person or contact point.

A request does not have to include the phrase 'subject access request' or Article 15 of the GDPR, as long as it is clear that the individual is asking for their own personal data.

This presents a challenge as any of your employees could receive a valid request. However, you have a legal responsibility to identify that an individual has made a request to you and handle it accordingly. Therefore you may need to consider which of your staff who regularly interact with individuals may need specific training to identify a request.

Additionally, it is good practice to have a policy for recording details of the requests you receive, particularly those made by telephone or in person. You may wish to check with the requester that you have understood their request, as this can help avoid later disputes about how you have interpreted the request. We also recommend that you keep a log of verbal requests.

Should we provide a specially designed form for individuals to make a subject access request?

Standard forms can make it easier both for you to recognise a subject access request and for the individual to include all the details you might need to locate the information they want.

Recital 59 of the GDPR recommends that organisations ‘provide means for requests to be made electronically, especially where personal data are processed by electronic means’. You should therefore consider designing a subject access form that individuals can complete and submit to you electronically.

However, even if you have a form, you should note that a subject access request is valid if it is submitted by any means, so you will still need to comply with any requests you receive in a letter, a standard email or verbally.

Therefore, although you may invite individuals to use a form, you must make it clear that it is not compulsory and do not try to use this as a way of extending the one month time limit for responding.

How should we provide the data to individuals?

If an individual makes a request electronically, you should provide the information in a commonly used electronic format, unless the individual requests otherwise.

The GDPR includes a best practice recommendation that, where possible, organisations should be able to provide remote access to a secure self-service system which would provide the individual with direct access to his or her information (Recital 63). This will not be appropriate for all organisations, but there are some sectors where this may work well.

However, providing remote access should not adversely affect the rights and freedoms of others – including trade secrets or intellectual property.

We have received a request but need to amend the data before sending out the response. Should we send out the “old” version?

It is our view that a subject access request relates to the data held at the time the request was received. However, in many cases, routine use of the data may result in it being amended or even deleted while you are dealing with the request. So it would be reasonable for you to supply information you hold when you send out a response, even if this is different to that held when you received the request.

However, it is not acceptable to amend or delete the data if you would not otherwise have done so. Under the Data Protection Act 2018 (DPA 2018), it is an offence to make any amendment with the intention of preventing its disclosure.

Do we have to explain the contents of the information we send to the individual?

The GDPR requires that the information you provide to an individual is in a concise, transparent, intelligible and easily accessible form, using clear and plain language. This will be particularly important where the information is addressed to a child.

At its most basic, this means that the additional information you provide in response to a request (see the ‘Other information’ section above) should be capable of being understood by the average person (or child). However, you are not required to ensure that that the information is provided in a form that can be understood by the particular individual making the request.

For further information about requests made by a child please see the ‘What about requests for information about children?’ section below.

Example

An individual makes a request for their personal data. When preparing the response, you notice that a lot of it is in coded form. For example, attendance at a particular training session is logged as “A”, while non-attendance at a similar event is logged as “M”. Also, some of the information is in the form of handwritten notes that are difficult to read. Without access to your key or index to explain this information, it would be impossible for anyone outside your organisation to understand. In this case, you are required to explain the meaning of the coded information. However, although it is good practice to do so, you are not required to decipher the poorly written notes, as the GDPR does not require you to make information legible.

Example

You receive a subject access request from someone whose English comprehension skills are quite poor. You send a response and they ask you to translate the information you sent them. You are not required to do this even if the person who receives it cannot understand all of it because it can be understood by the average person. However, it is good practice for you to help individuals understand the information you hold about them.

Can we charge a fee?

In most cases you cannot charge a fee to comply with a subject access request.

However, as noted above, where the request is manifestly unfounded or excessive you may charge a “reasonable fee” for the administrative costs of complying with the request.

You can also charge a reasonable fee if an individual requests further copies of their data following a request. You must base the fee on the administrative costs of providing further copies.

How long do we have to comply?

You must act on the subject access request without undue delay and at the latest within one month of receipt.

You should calculate the time limit from the day after you receive the request (whether the day after is a working day or not) until the corresponding calendar date in the next month.

Example

An organisation receives a request on 3 September. The time limit will start from the next day (4 September). This gives the organisation until 4 October to comply with the request.

If this is not possible because the following month is shorter (and there is no corresponding calendar date), the date for response is the last day of the following month.

If the corresponding date falls on a weekend or a public holiday, you have until the next working day to respond.

This means that the exact number of days you have to comply with a request varies, depending on the month in which the request was made.

Example

An organisation receives a request on 30 March. The time limit starts from the next day (31 March). As there is no equivalent date in April, the organisation has until 30 April to comply with the request.

If 30 April falls on a weekend, or is a public holiday, the organisation has until the end of the next working day to comply.

For practical purposes, if a consistent number of days is required (eg for operational or system purposes), it may be helpful to adopt a 28-day period to ensure compliance is always within a calendar month.

Can we extend the time for a response?

You can extend the time to respond by a further two months if the request is complex or you have received a number of requests from the individual. You must let the individual know within one month of receiving their request and explain why the extension is necessary.

However, it is the ICO's view that it is unlikely to be reasonable to extend the time limit if:

Can we ask an individual for ID?

If you have doubts about the identity of the person making the request you can ask for more information. However, it is important that you only request information that is necessary to confirm who they are. The key to this is proportionality.

You need to let the individual know as soon as possible that you need more information from them to confirm their identity before responding to their request. The period for responding to the request begins when you receive the additional information.

What about requests for large amounts of personal data?

If you process a large amount of information about an individual you can ask them for more information to clarify their request. You should only ask for information that you reasonably need to find the personal data covered by the request.

You need to let the individual know as soon as possible that you need more information from them before responding to their request. The period for responding to the request begins when you receive the additional information. However, if an individual refuses to provide any additional information, you must still endeavour to comply with their request ie by making reasonable searches for the information covered by the request.

What about requests made on behalf of others?

The GDPR does not prevent an individual making a subject access request via a third party. Often, this will be a solicitor acting on behalf of a client, but it could simply be that an individual feels comfortable allowing someone else to act for them. In these cases, you need to be satisfied that the third party making the request is entitled to act on behalf of the individual, but it is the third party’s responsibility to provide evidence of this entitlement. This might be a written authority to make the request or it might be a more general power of attorney.

Example

A building society has an elderly customer who visits a particular branch to make weekly withdrawals from one of her accounts. Over the past few years, she has always been accompanied by her daughter who is also a customer of the branch. The daughter makes a subject access request on behalf of her mother and explains that her mother does not feel up to making the request herself as she does not understand the ins and outs of data protection. As the information held by the building society is mostly financial, it is rightly cautious about giving customer information to a third party. If the daughter had a general power of attorney, the society would be happy to comply. They ask the daughter whether she has such a power, but she does not.

Bearing in mind that the branch staff know the daughter and have some knowledge of the relationship she has with her mother, they might consider complying with the request by making a voluntary disclosure. However, the building society is not obliged to do so, and it would not be unreasonable to require more formal authority.

If you think an individual may not understand what information would be disclosed to a third party who has made a subject access request on their behalf, you may send the response directly to the individual rather than to the third party. The individual may then choose to share the information with the third party after having had a chance to review it.

There are cases where an individual does not have the mental capacity to manage their own affairs. Although there are no specific provisions in the GDPR, the Mental Capacity Act 2005 or in the Adults with Incapacity (Scotland) Act 2000 enabling a third party to exercise subject access rights on behalf of such an individual, it is reasonable to assume that an attorney with authority to manage the property and affairs of an individual will have the appropriate authority. The same applies to a person appointed to make decisions about such matters:

What about requests for information about children?

Even if a child is too young to understand the implications of subject access rights, it is still the right of the child rather than of anyone else such as a parent or guardian. So it is the child who has a right of access to the information held about them, even though in the case of young children these rights are likely to be exercised by those with parental responsibility for them.

Before responding to a subject access request for information held about a child, you should consider whether the child is mature enough to understand their rights. If you are confident that the child can understand their rights, then you should usually respond directly to the child. You may, however, allow the parent to exercise the child’s rights on their behalf if the child authorises this, or if it is evident that this is in the best interests of the child.

What matters is that the child is able to understand (in broad terms) what it means to make a subject access request and how to interpret the information they receive as a result of doing so. When considering borderline cases, you should take into account, among other things:

In Scotland, a person aged 12 years or over is presumed to be of sufficient age and maturity to be able to exercise their right of access, unless the contrary is shown. This presumption does not apply in England and Wales or in Northern Ireland, where competence is assessed depending upon the level of understanding of the child, but it does indicate an approach that will be reasonable in many cases.

For further information on situations where the request has been made by a child, see our guidance on children and the GDPR.

What about data held by credit reference agencies?

In the DPA 2018 there are special provisions about the access to personal data held by credit reference agencies. Unless otherwise specified, a subject access request to a credit reference agency only applies to information relating to the individual’s financial standing. Credit reference agencies must also inform individuals of their rights under s.159 of the Consumer Credit Act. 

What should we do if the data includes information about other people?

Responding to a subject access request may involve providing information that relates both to the individual making the request and to another individual.

The DPA 2018  says that you do not have to comply with the request if it would mean disclosing information about another individual who can be identified from that information, except if:

In determining whether it is reasonable to disclose the information, you must take into account all of the relevant circumstances, including:

So, although you may sometimes be able to disclose information relating to a third party, you need to decide whether it is appropriate to do so in each case. This decision will involve balancing the data subject’s right of access against the other individual’s rights. If the other person consents to you disclosing the information about them, then it would be unreasonable not to do so. However, if there is no such consent, you must decide whether to disclose the information anyway.

For the avoidance of doubt, you cannot refuse to provide access to personal data about an individual simply because you obtained that data from a third party. The rules about third party data apply only to personal data which includes both information about the individual who is the subject of the request and information about someone else.

If we use a processor, does this mean they would have to deal with any subject access requests we receive?

Responsibility for complying with a subject access request lies with you as the controller. You need to ensure that you have contractual arrangements in place to guarantee that subject access requests are dealt with properly, irrespective of whether they are sent to you or to the processor. More information about contracts and liabilities between controllers and processors can be found here.

You are not able to extend the one month time limit on the basis that you have to rely on a processor to provide the information that you need to respond. As mentioned above, you can only extend the time limit by two months if the request is complex or you have received a number of requests from the individual.

Can we refuse to comply with a request?

You can refuse to comply with a subject access request if it is manifestly unfounded or excessive, taking into account whether the request is repetitive in nature.

If you consider that a request is manifestly unfounded or excessive you can:

In either case you need to justify your decision.

You should base the reasonable fee on the administrative costs of complying with the request. If you decide to charge a fee you should contact the individual promptly and inform them. You do not need to comply with the request until you have received the fee.

In more detail – Data Protection Act 2018

There are other exemptions from the right of access in the DPA 2018. These exemptions will apply in certain circumstances, broadly associated with why you are processing the data. We will provide guidance on the application of these exemptions in due course.

 

What should we do if we refuse to comply with a request?

You must inform the individual without undue delay and within one month of receipt of the request.                              

You should inform the individual about:

You should also provide this information if you request a reasonable fee or need additional information to identify the individual.

Can I require an individual to make a subject access request?

In the DPA 2018 it is a criminal offence, in certain circumstances and in relation to certain information, to require an individual to make a subject access request. We will provide further guidance on this offence in due course.

Right to rectification

At a glance

Checklists

Preparing for requests for rectification

☐ We know how to recognise a request for rectification and we understand when this right applies.

☐ We have a policy for how to record requests we receive verbally.

☐ We understand when we can refuse a request and are aware of the information we need to provide to individuals when we do so.

Complying with requests for rectification

☐ We have processes in place to ensure that we respond to a request for rectification without undue delay and within one month of receipt.

☐ We are aware of the circumstances when we can extend the time limit to respond to a request.

☐ We have appropriate systems to rectify or complete information, or provide a supplementary statement.

☐ We have procedures in place to inform any recipients if we rectify any data we have shared with them. 

In brief

What is the right to rectification?

Under Article 16 of the GDPR individuals have the right to have inaccurate personal data rectified. An individual may also be able to have incomplete personal data completed – although this will depend on the purposes for the processing. This may involve providing a supplementary statement to the incomplete data.

This right has close links to the accuracy principle of the GDPR (Article 5(1)(d)). However, although you may have already taken steps to ensure that the personal data was accurate when you obtained it, this right imposes a specific obligation to reconsider the accuracy upon request.

What do we need to do?

If you receive a request for rectification you should take reasonable steps to satisfy yourself that the data is accurate and to rectify the data if necessary. You should take into account the arguments and evidence provided by the data subject.

What steps are reasonable will depend, in particular, on the nature of the personal data and what it will be used for. The more important it is that the personal data is accurate, the greater the effort you should put into checking its accuracy and, if necessary, taking steps to rectify it. For example, you should make a greater effort to rectify inaccurate personal data if it is used to make significant decisions that will affect an individual or others, rather than trivial ones.

You may also take into account any steps you have already taken to verify the accuracy of the data prior to the challenge by the data subject.

When is data inaccurate?

The GDPR does not give a definition of the term accuracy. However, the Data Protection Act 2018 (DPA 2018) states that personal data is inaccurate if it is incorrect or misleading as to any matter of fact.

What should we do about data that records a mistake?

Determining whether personal data is inaccurate can be more complex if the data refers to a mistake that has subsequently been resolved. It may be possible to argue that the record of the mistake is, in itself, accurate and should be kept. In such circumstances the fact that a mistake was made and the correct information should also be included in the individuals data.

Example

If a patient is diagnosed by a GP as suffering from a particular illness or condition, but it is later proved that this is not the case, it is likely that their medical records should record both the initial diagnosis (even though it was later proved to be incorrect) and the final findings. Whilst the medical record shows a misdiagnosis, it is an accurate record of the patient's medical treatment. As long as the medical record contains the up-to-date findings, and this is made clear in the record, it would be difficult to argue that the record is inaccurate and should be rectified.

What should we do about data that records a disputed opinion?   

It is also complex if the data in question records an opinion. Opinions are, by their very nature, subjective, and it can be difficult to conclude that the record of an opinion is inaccurate. As long as the record shows clearly that the information is an opinion and, where appropriate, whose opinion it is, it may be difficult to say that it is inaccurate and needs to be rectified.

What should we do while we are considering the accuracy?

Under Article 18 an individual has the right to request restriction of the processing of their personal data where they contest its accuracy and you are checking it. As a matter of good practice, you should restrict the processing of the personal data in question whilst you are verifying its accuracy, whether or not the individual has exercised their right to restriction. For more information, see our guidance on the right to restriction.

What should we do if we are satisfied that the data is accurate?

You should let the individual know if you are satisfied that the personal data is accurate, and tell them that you will not be amending the data. You should explain your decision, and inform them of their right to make a complaint to the ICO or another supervisory authority; and their ability to seek to enforce their rights through a judicial remedy.

It is also good practice to place a note on your system indicating that the individual challenges the accuracy of the data and their reasons for doing so.

Can we refuse to comply with the request for rectification for other reasons?

You can refuse to comply with a request for rectification if the request is manifestly unfounded or excessive, taking into account whether the request is repetitive in nature.

If you consider that a request is manifestly unfounded or excessive you can:

In either case you will need to justify your decision.

You should base the reasonable fee on the administrative costs of complying with the request. If you decide to charge a fee you should contact the individual without undue delay and within one month. You do not need to comply with the request until you have received the fee.

In more detail – Data Protection Act 2018

There are other exemptions from the right to rectification contained in the DPA 2018. These exemptions will apply in certain circumstances, broadly associated with why you are processing the data. We will provide guidance on the application of these exemptions in due course.

 

What should we do if we refuse to comply with a request for rectification?

You must inform the individual without undue delay and within one month of receipt of the request about:

You should also provide this information if you request a reasonable fee or need additional information to identify the individual.

How can we recognise a request?

The GDPR does not specify how to make a valid request. Therefore, an individual can make a request for rectification verbally or in writing. It can also be made to any part of your organisation and does not have to be to a specific person or contact point.

A request to rectify personal data does not need to mention the phrase ‘request for rectification’ or Article 16 of the GDPR to be a valid request. As long as the individual has challenged the accuracy of their data and has asked you to correct it, or has asked that you take steps to complete data held about them that is incomplete, this will be a valid request under Article 16.

This presents a challenge as any of your employees could receive a valid verbal request. However, you have a legal responsibility to identify that an individual has made a request to you and handle it accordingly. Therefore you may need to consider which of your staff who regularly interact with individuals may need specific training to identify a request.

Additionally, it is good practice to have a policy for recording details of the requests you receive, particularly those made by telephone or in person. You may wish to check with the requester that you have understood their request, as this can help avoid later disputes about how you have interpreted the request. We also recommend that you keep a log of verbal requests.

Can we charge a fee?

No, in most cases you cannot charge a fee to comply with a request for rectification. 

However, as noted above, if the request is manifestly unfounded or excessive you may charge a “reasonable fee” for the administrative costs of complying with the request.

How long do we have to comply?

You must act upon the request without undue delay and at the latest within one month of receipt.

You should calculate the time limit from the day after you receive the request (whether the day after is a working day or not) until the corresponding calendar date in the next month.

Example

An organisation receives a request on 3 September. The time limit will start from the next day (4 September). This gives the organisation until 4 October to comply with the request.

If this is not possible because the following month is shorter (and there is no corresponding calendar date), the date for response is the last day of the following month.

If the corresponding date falls on a weekend or a public holiday, you will have until the next working day to respond.

This means that the exact number of days you have to comply with a request varies, depending on the month in which the request was made.

Example

An organisation receives a request on 30 March. The time limit starts from the next day (31 March). As there is no equivalent date in April, the organisation has until 30 April to comply with the request.

If 30 April falls on a weekend, or is a public holiday, the organisation has until the end of the next working day to comply.

For practical purposes, if a consistent number of days is required (eg for operational or system purposes), it may be helpful to adopt a 28-day period to ensure compliance is always within a calendar month.

Can we extend the time to respond to a request?

You can extend the time to respond by a further two months if the request is complex or you have received a number of requests from the individual. You must let the individual know without undue delay and within one month of receiving their request and explain why the extension is necessary.

The circumstances in which you can extend the time to respond can include further consideration of the accuracy of disputed data - although you can only do this in complex cases - and the result may be that at the end of the extended time period you inform the individual that you consider the data in question to be accurate.

However, it is the ICO's view that it is unlikely to be reasonable to extend the time limit if:

Can we ask an individual for ID?

If you have doubts about the identity of the person making the request you can ask for more information. However, it is important that you only request information that is necessary to confirm who they are. The key to this is proportionality. You should take into account what data you hold, the nature of the data, and what you are using it for.

You must let the individual know without undue delay and within one month that you need more information from them to confirm their identity. You do not need to comply with the request until you have received the additional information.

Do we have to tell other organisations if we rectify personal data?

If you have disclosed the personal data to others, you must contact each recipient and inform them of the rectification or completion of the personal data - unless this proves impossible or involves disproportionate effort. If asked to, you must also inform the individual about these recipients.

The GDPR defines a recipient as a natural or legal person, public authority, agency or other body to which the personal data are disclosed. The definition includes controllers, processors and persons who, under the direct authority of the controller or processor, are authorised to process personal data.

Right to erasure

At a glance

Checklists

Preparing for requests for erasure

☐ We know how to recognise a request for erasure and we understand when the right applies.

☐ We have a policy for how to record requests we receive verbally.

☐ We understand when we can refuse a request and are aware of the information we need to provide to individuals when we do so.

Complying with requests for erasure

☐ We have processes in place to ensure that we respond to a request for erasure without undue delay and within one month of receipt.

☐ We are aware of the circumstances when we can extend the time limit to respond to a request.

☐ We understand that there is a particular emphasis on the right to erasure if the request relates to data collected from children.

☐ We have procedures in place to inform any recipients if we erase any data we have shared with them.

☐ We have appropriate methods in place to erase information. 

In brief

What is the right to erasure?

Under Article 17 of the GDPR individuals have the right to have personal data erased. This is also known as the ‘right to be forgotten’. The right is not absolute and only applies in certain circumstances.

When does the right to erasure apply?

Individuals have the right to have their personal data erased if:

How does the right to erasure apply to data collected from children?

There is an emphasis on the right to have personal data erased if the request relates to data collected from children. This reflects the enhanced protection of children’s information, especially in online environments, under the GDPR.

Therefore, if you process data collected from children, you should give particular weight to any request for erasure if the processing of the data is based upon consent given by a child – especially any processing of their personal data on the internet. This is still the case when the data subject is no longer a child, because a child may not have been fully aware of the risks involved in the processing at the time of consent.

For further details about the right to erasure and children’s personal data please read our guidance on children's privacy.

Do we have to tell other organisations about the erasure of personal data?

The GDPR specifies two circumstances where you should tell other organisations about the erasure of personal data:

If you have disclosed the personal data to others, you must contact each recipient and inform them of the erasure, unless this proves impossible or involves disproportionate effort. If asked to, you must also inform the individuals about these recipients.

The GDPR defines a recipient as a natural or legal person, public authority, agency or other body to which the personal data are disclosed. The definition includes controllers, processors and persons who, under the direct authority of the controller or processor, are authorised to process personal data.

Where personal data has been made public in an online environment reasonable steps should be taken to inform other controllers who are processing the personal data to erase links to, copies or replication of that data. When deciding what steps are reasonable you should take into account available technology and the cost of implementation.

 

Do we have to erase personal data from backup systems?

If a valid erasure request is received and no exemption applies then you will have to take steps to ensure erasure from backup systems as well as live systems. Those steps will depend on your particular circumstances, your retention schedule (particularly in the context of its backups), and the technical mechanisms that are available to you.

You must be absolutely clear with individuals as to what will happen to their data when their erasure request is fulfilled, including in respect of backup systems.

It may be that the erasure request can be instantly fulfilled in respect of live systems, but that the data will remain within the backup environment for a certain period of time until it is overwritten.

The key issue is to put the backup data ‘beyond use’, even if it cannot be immediately overwritten. You must ensure that you do not use the data within the backup for any other purpose, ie that the backup is simply held on your systems until it is replaced in line with an established schedule. Provided this is the case it may be unlikely that the retention of personal data within the backup would pose a significant risk, although this will be context specific. For more information on what we mean by ‘putting data beyond use’ see our old guidance under the 1998 Act on deleting personal data (this will be updated in due course).

 

When does the right to erasure not apply?

The right to erasure does not apply if processing is necessary for one of the following reasons:

The GDPR also specifies two circumstances where the right to erasure will not apply to special category data:

For more information about special categories of data please see our Guide to the GDPR.

Can we refuse to comply with a request for other reasons?

You can refuse to comply with a request for erasure if it is manifestly unfounded or excessive, taking into account whether the request is repetitive in nature.

If you consider that a request is manifestly unfounded or excessive you can:

In either case you will need to justify your decision.

You should base the reasonable fee on the administrative costs of complying with the request. If you decide to charge a fee you should contact the individual promptly and inform them. You do not need to comply with the request until you have received the fee.

In more detail – Data Protection Act 2018

There are other exemptions from the right to erasure in the DPA 2018. These exemptions will apply in certain circumstances, broadly associated with why you are processing the data. We will provide further guidance on the application of these exemptions in due course.

 

What should we do if we refuse to comply with a request for erasure?

You must inform the individual without undue delay and within one month of receipt of the request.

You should inform the individual about:

You should also provide this information if you request a reasonable fee or need additional information to identify the individual.

How do we recognise a request?

The GDPR does not specify how to make a valid request. Therefore, an individual can make a request for erasure verbally or in writing. It can also be made to any part of your organisation and does not have to be to a specific person or contact point.

A request does not have to include the phrase 'request for erasure' or Article 17 of the GDPR, as long as one of the conditions listed above apply.

This presents a challenge as any of your employees could receive a valid verbal request. However, you have a legal responsibility to identify that an individual has made a request to you and handle it accordingly. Therefore you may need to consider which of your staff who regularly interact with individuals may need specific training to identify a request.

Additionally, it is good practice to have a policy for recording details of the requests you receive, particularly those made by telephone or in person. You may wish to check with the requester that you have understood their request, as this can help avoid later disputes about how you have interpreted the request. We also recommend that you keep a log of verbal requests.

Can we charge a fee?

No, in most cases you cannot charge a fee to comply with a request for erasure.

However, as noted above, where the request is manifestly unfounded or excessive you may charge a “reasonable fee” for the administrative costs of complying with the request.

How long do we have to comply?

You must act upon the request without undue delay and at the latest within one month of receipt.

You should calculate the time limit from the day after you receive the request (whether the day after is a working day or not) until the corresponding calendar date in the next month.

Example

An organisation receives a request on 3 September. The time limit will start from the next day (4 September). This gives the organisation until 4 October to comply with the request.

If this is not possible because the following month is shorter (and there is no corresponding calendar date), the date for response is the last day of the following month.

If the corresponding date falls on a weekend or a public holiday, you will have until the next working day to respond.

This means that the exact number of days you have to comply with a request varies, depending on the month in which the request is made.

Example

An organisation receives a request on 30 March. The time limit starts from the next day (31 March). As there is no equivalent date in April, the organisation has until 30 April to comply with the request.

If 30 April falls on a weekend or is a public holiday, the organisation has until the end of the next working day to comply.

For practical purposes, if a consistent number of days is required (eg for operational or system purposes), it may be helpful to adopt a 28-day period to ensure compliance is always within a calendar month.

Can we extend the time for a response?

You can extend the time to respond by a further two months if the request is complex or you have received a number of requests from the individual. You must let the individual know without undue delay and within one month of receiving their request and explain why the extension is necessary.

However, it is the ICO's view that it is unlikely to be reasonable to extend the time limit if:

Can we ask an individual for ID?

If you have doubts about the identity of the person making the request you can ask for more information. However, it is important that you only request information that is necessary to confirm who they are. The key to this is proportionality. You should take into account what data you hold, the nature of the data, and what you are using it for.

You must let the individual know without undue delay and within one month that you need more information from them to confirm their identity. You do not need to comply with the request until you have received the additional information.

Right to restrict processing

At a glance

Checklists

Preparing for requests for restriction

 We know how to recognise a request for restriction and we understand when the right applies.

 We have a policy in place for how to record requests we receive verbally.

 We understand when we can refuse a request and are aware of the information we need to provide to individuals when we do so.

Complying with requests for restriction

 We have processes in place to ensure that we respond to a request for restriction without undue delay and within one month of receipt.

 We are aware of the circumstances when we can extend the time limit to respond to a request.

 We have appropriate methods in place to restrict the processing of personal data on our systems.

 We have appropriate methods in place to indicate on our systems that further processing has been restricted.

 We understand the circumstances when we can process personal data that has been restricted.

 We have procedures in place to inform any recipients if we restrict any data we have shared with them.

 We understand that we need to tell individuals before we lift a restriction on processing. 

In brief

What is the right to restrict processing?

Article 18 of the GDPR gives individuals the right to restrict the processing of their personal data in certain circumstances. This means that an individual can limit the way that an organisation uses their data. This is an alternative to requesting the erasure of their data.

Individuals have the right to restrict the processing of their personal data where they have a particular reason for wanting the restriction. This may be because they have issues with the content of the information you hold or how you have processed their data. In most cases you will not be required to restrict an individual’s personal data indefinitely, but will need to have the restriction in place for a certain period of time.

When does the right to restrict processing apply?

Individuals have the right to request you restrict the processing of their personal data in the following circumstances:

Although this is distinct from the right to rectification and the right to object, there are close links between those rights and the right to restrict processing:

Therefore, as a matter of good practice you should automatically restrict the processing whilst you are considering its accuracy or the legitimate grounds for processing the personal data in question.

How do we restrict processing?

You need to have processes in place that enable you to restrict personal data if required. It is important to note that the definition of processing includes a broad range of operations including collection, structuring, dissemination and erasure of data. Therefore, you should use methods of restriction that are appropriate for the type of processing you are carrying out.

The GDPR suggests a number of different methods that could be used to restrict data, such as:

It is particularly important that you consider how you store personal data that you no longer need to process but the individual has requested you restrict (effectively requesting that you do not erase the data).

If you are using an automated filing system, you need to use technical measures to ensure that any further processing cannot take place and that the data cannot be changed whilst the restriction is in place. You should also note on your system that the processing of this data has been restricted.

Can we do anything with restricted data?

You must not process the restricted data in any way except to store it unless:

Do we have to tell other organisations about the restriction of personal data?

Yes. If you have disclosed the personal data in question to others, you must contact each recipient and inform them of the restriction of the personal data - unless this proves impossible or involves disproportionate effort. If asked to, you must also inform the individual about these recipients.

The GDPR defines a recipient as a natural or legal person, public authority, agency or other body to which the personal data are disclosed. The definition includes controllers, processors and persons who, under the direct authority of the controller or processor, are authorised to process personal data.

When can we lift the restriction?

In many cases the restriction of processing is only temporary, specifically when the restriction is on the grounds that:

Once you have made a decision on the accuracy of the data, or whether your legitimate grounds override those of the individual, you may decide to lift the restriction.

If you do this, you must inform the individual before you lift the restriction.

As noted above, these two conditions are linked to the right to rectification (Article 16) and the right to object (Article 21). This means that if you are informing the individual that you are lifting the restriction (on the grounds that you are satisfied that the data is accurate, or that your legitimate grounds override theirs) you should also inform them of the reasons for your refusal to act upon their rights under Articles 16 or 21. You will also need to inform them of their right to make a complaint to the ICO or another supervisory authority; and their ability to seek a judicial remedy.

Can we refuse to comply with a request for restriction?

You can refuse to comply with a request for restriction if the request is manifestly unfounded or excessive, taking into account whether the request is repetitive in nature.

If you consider that a request is manifestly unfounded or excessive you can:

In either case you will need to justify your decision.

You should base the reasonable fee on the administrative costs of complying with the request. If you decide to charge a fee you should contact the individual promptly and inform them. You do not need to comply with the request until you have received the fee.

In more detail – Data Protection Act 2018

There are other exemptions from the right to restriction contained in the Data Protection Act 2018. These exemptions will apply in certain circumstances, broadly associated with why you are processing the data. We will provide further guidance on the application of these exemptions in due course.

What should we do if we refuse to comply with a request for restriction?

You must inform the individual without undue delay and within one month of receipt of the request.         

You should inform the individual about:

You should also provide this information if you request a reasonable fee or need additional information to identify the individual.

How do we recognise a request?

The GDPR does not specify how to make a valid request. Therefore, an individual can make a request for restriction verbally or in writing. It can also be made to any part of your organisation and does not have to be to a specific person or contact point.

A request does not have to include the phrase 'request for restriction' or Article 18 of the GDPR, as long as one of the conditions listed above apply.

This presents a challenge as any of your employees could receive a valid verbal request. However, you have a legal responsibility to identify that an individual has made a request to you and handle it accordingly. Therefore you may need to consider which of your staff who regularly interact with individuals may need specific training to identify a request.

Additionally, it is good practice to have a policy for recording details of the requests you receive, particularly those made by telephone or in person. You may wish to check with the requester that you have understood their request, as this can help avoid later disputes about how you have interpreted the request. We also recommend that you keep a log of verbal requests.

Can we charge a fee?

No, in most cases you cannot charge a fee to comply with a request for restriction.

However, as noted above, where the request is manifestly unfounded or excessive you may charge a “reasonable fee” for the administrative costs of complying with the request.

How long do we have to comply?

You must act upon the request without undue delay and at the latest within one month of receipt.

You should calculate the time limit from the day after you receive the request (whether the day after is a working day or not) until the corresponding calendar date in the next month.

Example

An organisation receives a request on 3 September. The time limit will start from the next day (4 September). This gives the organisation until 4 October to comply with the request.

If this is not possible because the following month is shorter (and there is no corresponding calendar date), the date for response is the last day of the following month.

If the corresponding date falls on a weekend or a public holiday, you will have until the next working day to respond.

This means that the exact number of days you have to comply with a request varies, depending on the month in which the request was made.

Example

An organisation receives a request on 30 March. The time limit starts from the next day (31 March). As there is no equivalent date in April, the organisation has until 30 April to comply with the request.

If 30 April falls on a weekend, or is a public holiday, the organisation has until the end of the next working day to comply.

For practical purposes, if a consistent number of days is required (eg for operational or system purposes), it may be helpful to adopt a 28-day period to ensure compliance is always within a calendar month.

Can we extend the time for a response?                             

You can extend the time to respond by a further two months if the request is complex or you have received a number of requests from the individual. You must let the individual know within one month of receiving their request and explain why the extension is necessary.

However, it is the ICO's view that it is unlikely to be reasonable to extend the time limit if:

Can we ask an individual for ID?

If you have doubts about the identity of the person making the request you can ask for more information. However, it is important that you only request information that is necessary to confirm who they are. The key to this is proportionality. You should take into account what data you hold, the nature of the data, and what you are using it for.

You must let the individual know without undue delay and within one month that you need more information from them to confirm their identity. You do not need to comply with the request until you have received the additional information.

Right to data portability

At a glance

Checklists

Preparing for requests for data portability

We know how to recognise a request for data portability and we understand when the right applies.

We have a policy for how to record requests we receive verbally.

We understand when we can refuse a request and are aware of the information we need to provide to individuals when we do so.

Complying with requests for data portability

We can transmit personal data in structured, commonly used and machine readable formats.

We use secure methods to transmit personal data.

We have processes in place to ensure that we respond to a request for data portability without undue delay and within one month of receipt.

We are aware of the circumstances when we can extend the time limit to respond to a request.

In brief

What is the right to data portability?

The right to data portability gives individuals the right to receive personal data they have provided to a controller in a structured, commonly used and machine readable format. It also gives them the right to request that a controller transmits this data directly to another controller.

When does the right apply?

The right to data portability only applies when:

What does the right apply to?

Information is only within the scope of the right to data portability if it is personal data of the individual that they have provided to you.

What does ‘provided to a controller’ mean?

Sometimes the personal data an individual has provided to you will be easy to identify (eg their mailing address, username, age). However, the meaning of data ‘provided to’ you is not limited to this. It is also personal data resulting from observation of an individual’s activities (eg where using a device or service).

This may include:

It does not include any additional data that you have created based on the data an individual has provided to you. For example, if you use the data they have provided to create a user profile then this data would not be in scope of data portability.

You should however note that if this ‘inferred’ or ‘derived’ data is personal data, you still need to provide it to an individual if they make a subject access request. Bearing this in mind, if it is clear that the individual is seeking access to the inferred/derived data, as part of a wider portability request, it would be good practice to include this data in your response.

Does the right apply to anonymous or pseudonymous data?

The right to data portability only applies to personal data. This means that it does not apply to genuinely anonymous data. However, pseudonymous data that can be clearly linked back to an individual (eg where that individual provides the respective identifier) is within scope of the right.

What happens if the personal data includes information about others?

If the requested information includes information about others (eg third party data) you need to consider whether transmitting that data would adversely affect the rights and freedoms of those third parties.

Generally speaking, providing third party data to the individual making the portability request should not be a problem, assuming that the requestor provided this data to you within their information in the first place. However, you should always consider whether there will be an adverse effect on the rights and freedoms of third parties, in particular when you are transmitting data directly to another controller.

If the requested data has been provided to you by multiple data subjects (eg a joint bank account) you need to be satisfied that all parties agree to the portability request. This means that you may have to seek agreement from all the parties involved.

What is an individual entitled to?

The right to data portability entitles an individual to:

Individuals have the right to receive their personal data and store it for further personal use. This allows the individual to manage and reuse their personal data. For example, an individual wants to retrieve their contact list from a webmail application to build a wedding list or to store their data in a personal data store.

You can achieve this by either:

This does not create an obligation for you to allow individuals more general and routine access to your systems – only for the extraction of their data following a portability request.

You may have a preferred method of providing the information requested depending on the amount and complexity of the data requested. In either case, you need to ensure that the method is secure.

What are the limits when transmitting personal data to another controller?

Individuals have the right to ask you to transmit their personal data directly to another controller without hindrance.  If it is technically feasible, you should do this.

You should consider the technical feasibility of a transmission on a request by request basis. The right to data portability does not create an obligation for you to adopt or maintain processing systems which are technically compatible with those of other organisations (GDPR Recital 68). However, you should take a reasonable approach, and this should not generally create a barrier to transmission.

Without hindrance means that you should not put in place any legal, technical or financial obstacles which slow down or prevent the transmission of the personal data to the individual, or to another organisation.

However, there may be legitimate reasons why you cannot undertake the transmission. For example, if the transmission would adversely affect the rights and freedoms of others. It is however your responsibility to justify why these reasons are legitimate and why they are not a ‘hindrance’ to the transmission.

Do we have responsibility for the personal data we transmit to others?

If you provide information directly to an individual or to another organisation in response to a data portability request, you are not responsible for any subsequent processing carried out by the individual or the other organisation. However, you are responsible for the transmission of the data and need to take appropriate measures to ensure that it is transmitted securely and to the right destination.

If you provide data to an individual, it is possible that they will store the information in a system with less security than your own. Therefore, you should make individuals aware of this so that they can take steps to protect the information they have received. 

You also need to ensure that you comply with the other provisions in the GDPR. For example, whilst there is no specific obligation under the right to data portability to check and verify the quality of the data you transmit, you should already have taken reasonable steps to ensure the accuracy of this data in order to comply with the requirements of the accuracy principle of the GDPR.

How should we provide the data?

You should provide the personal data in a format that is:

Although these terms are not defined in the GDPR these three characteristics can help you decide whether the format you intend to use is appropriate.

You can also find relevant information in the ‘Open Data Handbook’, published by Open Knowledge International. The handbook is a guide to ‘open data’, information that is free to access and can be re-used for any purpose – particularly information held by the public sector. The handbook contains a number of definitions that are relevant to the right to data portability, and this guidance includes some of these below.  

What does ‘structured’ mean?

Structured data allows for easier transfer and increased usability.

The Open Data Handbook defines ‘structured data’ as:

‘data where the structural relation between elements is explicit in the way the data is stored on a computer disk.’

This means that software must be able to extract specific elements of the data. An example of a structured format is a spreadsheet, where the data is organised into rows and columns, ie it is ‘structured’. In practice, some of the personal data you process will already be in structured form.

In many cases, if a format is structured it is also machine-readable.

What does ‘commonly used’ mean?

This simply means that the format you choose must be widely-used and well-established.

However, just because a format is ‘commonly used’ does not mean it is appropriate for data portability. You have to consider whether it is ‘structured’, and ‘machine-readable’ as well. Although you may be using common software applications, which save data in commonly-used formats, these may not be sufficient to meet the requirements of data portability.

What does ‘machine-readable’ mean?

The Open Data Handbook states that ‘machine readable’ data is:

‘Data in a data format that can be automatically read and processed by a computer.’

Furthermore, Regulation 2 of the Re-use of Public Sector Information Regulations 2015 defines ‘machine-readable format’ as:

‘A file format structured so that software applications can easily identify, recognise and extract specific data, including individual statements of fact, and their internal structure.’

Machine-readable data can be made directly available to applications that request that data over the web. This is undertaken by means of an application programming interface (“API”).

If you are able to implement such a system then you can facilitate data exchanges with individuals and respond to data portability requests in an easy manner.

Should we use an ‘interoperable’ format?

Although you are not required to use an interoperable format, this is encouraged by the GDPR, which seeks to promote the concept of interoperability. Recital 68 says:

‘Data controllers should be encouraged to develop interoperable formats that enable data portability.’

Interoperability allows different systems to share information and resources. An ‘interoperable format’ is a type of format that allows data to be exchanged between different systems and be understandable to both.

At the same time, you are not expected to maintain systems that are technically compatible with those of other organisations. Data portability is intended to produce interoperable systems, not compatible ones.

What formats can we use?

You may already be using an appropriate format within your networks and systems, and/or you may be required to use a particular format due to the particular industry or sector you are part of. Provided it meets the requirements of being structured, commonly-used and machine readable then it could be appropriate for a data portability request.

The GDPR does not require you to use open formats internally. Your processing systems may indeed use proprietary formats which individuals may not be able to access if you provide data to them in these formats. In these cases you need to perform some additional processing on the personal data in order to put it into the type of format required by the GDPR.

Where no specific format is in common use within your industry or sector, you should provide personal data using open formats such as CSV, XML and JSON. You may also find that these formats are the easiest for you to use when answering data portability requests.

For further information on CSV, XML and JSON, please see below.

What is CSV?

CSV stands for ‘Comma Separated Values’. It is defined by the Open Data Handbook as:

‘a standard format for spreadsheet data. Data is represented in a plain text file, with each data row on a new line and commas separating the values on each row. As a very simple open format it is easy to consume and is widely used for publishing open data.’

CSV is used to exchange data and is widely supported by software applications. Although CSV is not standardised it is nevertheless structured, commonly used and machine-readable and is therefore an appropriate format for you to use when responding to a data portability request.

What is XML?

XML stands for ‘Extensible Markup Language’. It is defined by the Open Data Handbook as:

‘a simple and powerful standard for representing structured data.’

It is a file format that is intended to be both human readable and machine-readable. Unlike CSV, XML is defined by a set of open standards maintained by the World Wide Web Consortium (“W3C”). It is widely used for documents, but can also be used to represent data structures such as those used in web services.

This means XML can be processed by APIs, facilitating data exchange. For example, you may develop or implement an API to exchange personal data in XML format with another organisation. In the context of data portability, this can allow you to transmit personal data to an individual’s personal data store, or to another organisation if the individual has asked you to do so.

What is JSON?

JSON stands for ‘JavaScript Object Notation’. The Open Data Handbook defines JSON as:

‘a simple but powerful format for data. It can describe complex data structures, is highly machine-readable as well as reasonably human-readable, and is independent of platform and programming language, and is therefore a popular format for data interchange between programs and systems.’

It is a file format based on the JavaScript language that many web sites use and is used as a data interchange format. As with XML, it can be read by humans or machines. It is also a standardised open format maintained by the W3C.

Are these the only formats we can use?

CSV, XML and JSON are three examples of structured, commonly used and machine-readable formats that are appropriate for data portability. However, this does not mean you are obliged to use them. Other formats exist that also meet the requirements of data portability.

Example

The RDF or ‘Resource Description Framework’ format is also a structured, commonly-used, machine-readable format. It is an open standard published by the W3C and is intended to provide interoperability between applications exchanging information.

You should however consider the nature of the portability request. If the individual cannot make use of the format, even if it is structured, commonly-used and machine-readable then the data will be of no use to them.

Further reading

The Open Data Handbook is published by Open Knowledge International and is a guide to ‘open data’. The Handbook is updated regularly and you can read it here:

http://opendatahandbook.org

W3C candidate recommendation for XML is available here:

http://www.w3.org/TR/2008/REC-xml-20081126/

W3C’s specification of the JSON data interchange format is available here:

https://tools.ietf.org/html/rfc7159

W3C’s list of specifications for RDF is available here:

http://www.w3.org/standards/techs/rdf#w3c_all

What responsibilities do we have when we receive personal data because of a data portability request?

When you receive personal data that has been transmitted as part of a data portability request, you need to process this data in line with data protection requirements.

In deciding whether to accept and retain personal data, you should consider whether the data is relevant and not excessive in relation to the purposes for which you will process it. You also need to consider whether the data contains any third party information.

As a new controller, you need to ensure that you have an appropriate lawful basis for processing any third party data and that this processing does not adversely affect the rights and freedoms of those third parties. If you have received personal data which you have no reason to keep, you should delete it as soon as possible. When you accept and retain data, it becomes your responsibility to ensure that you comply with the requirements of the GDPR.

In particular, if you receive third party data you should not use this for your own purposes. You should keep the third party data under the sole control of the individual who has made the portability request, and only used for their own purposes.

Example

An individual enters into a contract with a controller for the provision of a service. The controller relies on Article 6(1)(b) to process the individual’s personal data. The controller receives information from a data portability request that includes information about third parties. The controller has a legitimate interest to process the third party data under Article 6(1)(f) so that it can provide this service to the individual. However, it should not then use this data to send direct marketing to the third parties.

When can we refuse to comply with a request for data portability?

You can refuse to comply with a request for data portability if it is manifestly unfounded or excessive, taking into account whether the request is repetitive in nature.

If you consider that a request is manifestly unfounded or excessive you can:

In either case you will need to justify your decision.

You should base the reasonable fee on the administrative costs of complying with the request. If you decide to charge a fee you should contact the individual promptly and inform them. You do not need to comply with the request until you have received the fee.

In more detail – Data Protection Act 2018

There are other exemptions from the right to data portability contained in the Data Protection Act 2018. These exemptions will apply in certain circumstances, broadly associated with why you are processing the data. We will provide further guidance on the application of these exemptions in due course.

What should we do if we refuse to comply with a request for data portability?

You must inform the individual without undue delay and within one month of receipt of the request.                    

You should inform the individual about:

You should also provide this information if you request a reasonable fee or need additional information to identify the individual.

How do we recognise a request?

The GDPR does not specify how individuals should make data portability requests. Therefore, requests could be made verbally or in writing. They can also be made to any part of your organisation and do not have to be to a specific person or contact point.

A request does not have to include the phrase 'request for data portability' or a reference to ‘Article 20 of the GDPR’, as long as one of the conditions listed above apply.

This presents a challenge as any of your employees could receive a valid request. However, you have a legal responsibility to identify that an individual has made a request to you and handle it accordingly. Therefore you may need to consider which of your staff who regularly interact with individuals may need specific training to identify a request.

Additionally, it is good practice to have a policy for recording details of the requests you receive, particularly those made by telephone or in person. You may wish to check with the requester that you have understood their request, as this can help avoid later disputes about how you have interpreted the request. We also recommend that you keep a log of verbal requests.

In practice, you may already have processes in place to enable your staff to recognise subject access requests, such as training or established procedures. You could consider adapting them to ensure your staff also recognise data portability requests.

Can we charge a fee?

No, in most cases you cannot charge a fee to comply with a request for data portability.

However, as noted above, if the request is manifestly unfounded or excessive you may charge a “reasonable fee” for the administrative costs of complying with the request.

How long do we have to comply?

You must act upon the request without undue delay and at the latest within one month of receipt.

You should calculate the time limit from the day after you receive the request (whether the day after is a working day or not) until the corresponding calendar date in the next month.

Example

An organisation receives a request on 3 September. The time limit will start from the next day (4 September). This gives the organisation until 4 October to comply with the request.

If this is not possible because the following month is shorter (and there is no corresponding calendar date), the date for response is the last day of the following month.

If the corresponding date falls on a weekend or a public holiday, you will have until the next working day to respond.

This means that the exact number of days you have to comply with a request varies, depending on the month in which the request was made.

Example

An organisation receives a request on 30 March. The time limit starts from the next day (31 March). As there is no equivalent date in April, the organisation has until 30 April to comply with the request.

If 30 April falls on a weekend, or is a public holiday, the organisation has until the end of the next working day to comply.

For practical purposes, if a consistent number of days is required (eg for operational or system purposes), it may be helpful to adopt a 28-day period to ensure compliance is always within a calendar month.

Can we extend the time for a response?                   

You can extend the time to respond by a further two months if the request is complex or you have received a number of requests from the individual. You must let the individual know within one month of receiving their request and explain why the extension is necessary.

However, it is the ICO's view that it is unlikely to be reasonable to extend the time limit if:

Can we ask an individual for ID?

If you have doubts about the identity of the person making the request you can ask for more information. However, it is important that you only request information that is necessary to confirm who they are. The key to this is proportionality. You should take into account what data you hold, the nature of the data, and what you are using it for.

You need to let the individual know as soon as possible that you need more information from them to confirm their identity before responding to their request. The period for responding to the request begins when you receive the additional information.

In more detail – European Data Protection Protection Board 

The European Data Protection Protection Board (EDPB) includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

The EDPB has published guidelines and FAQs on data portability for organisations.

Right to object

At a glance

Checklists

Preparing for objections to processing

We know how to recognise an objection and we understand when the right applies.

 We have a policy in place for how to record objections we receive verbally.

 We understand when we can refuse an objection and are aware of the information we need to provide to individuals when we do so.

 We have clear information in our privacy notice about individuals’ right to object, which is presented separately from other information on their rights.

We understand when we need to inform individuals of their right to object in addition to including it in our privacy notice.

Complying with requests which object to processing

 We have processes in place to ensure that we respond to an objection without undue delay and within one month of receipt.

We are aware of the circumstances when we can extend the time limit to respond to an objection.

 We have appropriate methods in place to erase, suppress or otherwise cease processing personal data.

In brief

What is the right to object?

Article 21 of the GDPR gives individuals the right to object to the processing of their personal data. This effectively allows individuals to ask you to stop processing their personal data. 

The right to object only applies in certain circumstances. Whether it applies depends on your purposes for processing and your lawful basis for processing.

When does the right to object apply?   

Individuals have the absolute right to object to the processing of their personal data if it is for direct marketing purposes.

Individuals can also object if the processing is for:

In these circumstances the right to object is not absolute.

If you are processing data for scientific or historical research, or statistical purposes, the right to object is more limited.

These various grounds are discussed further below.

Direct marketing

An individual can ask you to stop processing their personal data for direct marketing at any time. This includes any profiling of data that is related to direct marketing.

This is an absolute right and there are no exemptions or grounds for you to refuse. Therefore, when you receive an objection to processing for direct marketing, you must stop processing the individual’s data for this purpose.

However, this does not automatically mean that you need to erase the individual’s personal data, and in most cases it will be preferable to suppress their details. Suppression involves retaining just enough information about them to ensure that their preference not to receive direct marketing is respected in future.

Processing based upon public task or legitimate interests

An individual can also object where you are relying on one of the following lawful bases:

An individual must give specific reasons why they are objecting to the processing of their data. These reasons should be based upon their particular situation.

In these circumstances this is not an absolute right, and you can continue processing if:

If you are deciding whether you have compelling legitimate grounds which override the interests of an individual, you should consider the reasons why they have objected to the processing of their data. In particular, if an individual objects on the grounds that the processing is causing them substantial damage or distress (eg the processing is causing them financial loss), the grounds for their objection will have more weight. In making a decision on this, you need to balance the individual’s interests, rights and freedoms with your own legitimate grounds. During this process you should remember that the responsibility is for you to be able to demonstrate that your legitimate grounds override those of the individual.

If you are satisfied that you do not need to stop processing the personal data in question you should let the individual know. You should explain your decision, and inform them of their right to make a complaint to the ICO or another supervisory authority; and their ability to seek to enforce their rights through a judicial remedy.

Research purposes

Where you are processing personal data for scientific or historical research, or statistical purposes, the right to object is more restricted.

Article 21(4) states:

‘Where personal data are processed for scientific or historical research purposes or statistical purposes pursuant to Article 89(1), the data subject, on grounds relating to his or her personal situation, shall have the right to object to processing of personal data concerning him or her, unless the processing is necessary for the performance of a task carried out for reasons of public interest.’

Effectively this means that if you are processing data for these purposes and have appropriate safeguards in place (eg data minimisation and pseudonymisation where possible) the individual only has a right to object if your lawful basis for processing is:                  

The individual does not have a right to object if your lawful basis for processing is public task because it is necessary for the performance of a task carried out in the public interest.

Article 21(4) therefore differentiates between the two parts of the public task lawful basis (performance of a task carried out in the public interest or in the exercise of official authority vested in you).                          

This may cause difficulties if you are relying on the public task lawful basis for processing. It may not always be clear whether you are carrying out the processing solely as a task in the public interest, or in the exercise of official authority. Indeed, it may be difficult to differentiate between the two.

As such, it is good practice that if you are relying upon the public task lawful basis and receive an objection, you should consider the objection on its own merits and go on to consider the steps outlined in the next paragraph, rather than refusing it outright. If you do intend to refuse an objection on the basis that you are carrying out research or statistical work solely for the performance of a public task carried out in the public interest you should be clear in your privacy notice that you are only carrying out this processing on this basis.

If you do receive an objection you may be able to continue processing, if you can demonstrate that you have a compelling legitimate reason or the processing is necessary for legal claims. You need to go through the steps outlined in the previous section to demonstrate this.

As noted above, if you are satisfied that you do not need to stop processing you should let the individual know. You should provide an explanation for your decision, and inform them of their right to make a complaint to the ICO or another supervisory authority, as well as their ability to seek to enforce their rights through a judicial remedy.

Do we need to tell individuals about the right to object?

The GDPR is clear that you must inform individuals of their right to object at the latest at the time of your first communication with them where:

If one of these conditions applies, you should explicitly bring the right to object to the individual’s attention. You should present this information clearly and separately from any other information.

If you are processing personal data for research or statistical purposes you should include information about the right to object (along with information about the other rights of the individual) in your privacy notice.

Do we always need to erase personal data to comply with an objection?

Where you have received an objection to the processing of personal data and you have no grounds to refuse, you need to stop processing the data.

This may mean that you need to erase personal data as the definition of processing under the GDPR is broad, and includes storing data. However, as noted above, this will not always be the most appropriate action to take. 

Erasure may not be appropriate if you process the data for other purposes as you need to retain the data for those purposes. For example, when an individual objects to the processing of their data for direct marketing, you can place their details onto a suppression list to ensure that you continue to comply with their objection. However, you need to ensure that the data is clearly marked so that it is not processed for purposes the individual has objected to.

Can we refuse to comply with an objection for other reasons?

You can also refuse to comply with an objection if the request is manifestly unfounded or excessive, taking into account whether the request is repetitive in nature.

If you consider that an objection is manifestly unfounded or excessive you can:

In either case you will need to justify your decision.

You should base the reasonable fee on the administrative costs of complying with the request. If you decide to charge a fee you should contact the individual promptly and inform them. You do not need to comply with the request until you have received the fee.

In more detail – Data Protection Act 2018

There are other exemptions from the right to object contained in the Data Protection Act 2018. These exemptions will apply in certain circumstances, broadly associated with why you are processing the data. We will provide further guidance on the application of these exemptions in due course.

What should we do if we refuse to comply with an objection?

You must inform the individual without undue delay and within one month of receipt of the request.

You should inform the individual about:

You should also provide this information if you request a reasonable fee or need additional information to identify the individual.

How do we recognise an objection?

The GDPR does not specify how to make a valid objection. Therefore, an objection to processing can be made verbally or in writing. It can also be made to any part of your organisation and does not have to be to a specific person or contact point.

A request does not have to include the phrase 'objection to processing' or Article 21 of the GDPR - as long as one of the conditions listed above apply.

This presents a challenge as any of your employees could receive a valid verbal objection. However, you have a legal responsibility to identify that an individual has made an objection to you and to handle it accordingly. Therefore you may need to consider which of your staff who regularly interact with individuals may need specific training to identify an objection.

Additionally, it is good practice to have a policy for recording details of the objections you receive, particularly those made by telephone or in person. You may wish to check with the requester that you have understood their request, as this can help avoid later disputes about how you have interpreted the objection. We also recommend that you keep a log of verbal objections.

Can we charge a fee?

No, in most cases you cannot charge a fee to comply with an objection to processing.

However, as noted above, where the objection is manifestly unfounded or excessive you may charge a “reasonable fee” for the administrative costs of complying with the request.

How long do we have to comply?

You must act upon the objection without undue delay and at the latest within one month of receipt.

You should calculate the time limit from the day after you receive the objection (whether the day after is a working day or not) until the corresponding calendar date in the next month.

Example

An organisation receives an objection on 3 September. The time limit will start from the next day (4 September). This gives the organisation until 4 October to comply with the objection.

If this is not possible because the following month is shorter (and there is no corresponding calendar date), the date for response is the last day of the following month.

If the corresponding date falls on a weekend or a public holiday, you will have until the next working day to respond.

This means that the exact number of days you have to comply with an objection varies, depending on the month in which it was made.

Example

An organisation receives an objection on 30 March. The time limit starts from the next day (31 March). As there is no equivalent date in April, the organisation has until 30 April to comply with the objection.

If 30 April falls on a weekend, or is a public holiday, the organisation has until the end of the next working day to comply.

For practical purposes, if a consistent number of days is required (eg for operational or system purposes), it may be helpful to adopt a 28-day period to ensure compliance is always within a calendar month.

Can we extend the time for a response?

You can extend the time to respond to an objection by a further two months if the request is complex or you have received a number of requests from the individual. You must let the individual know within one month of receiving their objection and explain why the extension is necessary.

However, it is the ICO's view that it is unlikely to be reasonable to extend the time limit if:

Can we ask an individual for ID?

If you have doubts about the identity of the person making the objection you can ask for more information. However, it is important that you only request information that is necessary to confirm who they are. The key to this is proportionality. You should take into account what data you hold, the nature of the data, and what you are using it for.

You need to let the individual know as soon as possible that you need more information from them to confirm their identity before responding to their objection. The period for responding to the objection begins when you receive the additional information.

Rights related to automated decision making including profiling

At a glance

Checklists

All automated individual decision-making and profiling

To comply with the GDPR...

☐ We have a lawful basis to carry out profiling and/or automated decision-making and document this in our data protection policy.

☐ We send individuals a link to our privacy statement when we have obtained their personal data indirectly.

☐ We explain how people can access details of the information we used to create their profile.

☐ We tell people who provide us with their personal data how they can object to profiling, including profiling for marketing purposes.

☐ We have procedures for customers to access the personal data input into the profiles so they can review and edit for any accuracy issues.

☐ We have additional checks in place for our profiling/automated decision-making systems to protect any vulnerable groups (including children).

☐ We only collect the minimum amount of data needed and have a clear retention policy for the profiles we create.

As a model of best practice...

☐ We carry out a DPIA to consider and address the risks before we start any new automated decision-making or profiling.

☐ We tell our customers about the profiling and automated decision-making we carry out, what information we use to create the profiles and where we get this information from.

☐ We use anonymised data in our profiling activities.

Solely automated individual decision-making, including profiling with legal or similarly significant effects (Article 22)

To comply with the GDPR...

☐ We carry out a DPIA to identify the risks to individuals, show how we are going to deal with them and what measures we have in place to meet GDPR requirements.

☐ We carry out processing under Article 22(1) for contractual purposes and we can demonstrate why it’s necessary.

OR

☐ We carry out processing under Article 22(1) because we have the individual’s explicit consent recorded. We can show when and how we obtained consent. We tell individuals how they can withdraw consent and have a simple way for them to do this.

OR

☐ We carry out processing under Article 22(1) because we are authorised or required to do so. This is the most appropriate way to achieve our aims.

☐ We don’t use special category data in our automated decision-making systems unless we have a lawful basis to do so, and we can demonstrate what that basis is. We delete any special category data accidentally created.

☐ We explain that we use automated decision-making processes, including profiling. We explain what information we use, why we use it and what the effects might be.

☐ We have a simple way for people to ask us to reconsider an automated decision.

☐ We have identified staff in our organisation who are authorised to carry out reviews and change decisions.

☐ We regularly check our systems for accuracy and bias and feed any changes back into the design process.

As a model of best practice...

☐ We use visuals to explain what information we collect/use and why this is relevant to the process.

☐ We have signed up to [standard] a set of ethical principles to build trust with our customers. This is available on our website and on paper.

In brief

What’s new under the GDPR?

What is automated individual decision-making and profiling?

Automated individual decision-making is a decision made by automated means without any human involvement.

Examples of this include:

Automated individual decision-making does not have to involve profiling, although it often will do.

The GDPR says that profiling is:

“Any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements.”

[Article 4(4)]

Organisations obtain personal information about individuals from a variety of different sources. Internet searches, buying habits, lifestyle and behaviour data gathered from mobile phones, social networks, video surveillance systems and the Internet of Things are examples of the types of data organisations might collect.                             

Information is analysed to classify people into different groups or sectors, using algorithms and machine-learning. This analysis identifies links between different behaviours and characteristics to create profiles for individuals. There is more information about algorithms and machine-learning in our paper on big data, artificial intelligence, machine learning and data protection.

Based on the traits of others who appear similar, organisations use profiling to:

This can be very useful for organisations and individuals in many sectors, including healthcare, education, financial services and marketing.

Automated individual decision-making and profiling can lead to quicker and more consistent decisions. But if they are used irresponsibly there are significant risks for individuals. The GDPR provisions are designed to address these risks.

What does the GDPR say about automated individual decision-making and profiling?

The GDPR restricts you from making solely automated decisions, including those based on profiling, that have a legal or similarly significant effect on individuals.

“The data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.”

[Article 22(1)]

For something to be solely automated there must be no human involvement in the decision-making process.       

The restriction only covers solely automated individual decision-making that produces legal or similarly significant effects. These types of effect are not defined in the GDPR, but the decision must have a serious negative impact on an individual to be caught by this provision. 

A legal effect is something that adversely affects someone’s legal rights. Similarly significant effects are more difficult to define but would include, for example, automatic refusal of an online credit application, and e-recruiting practices without human intervention.

When can we carry out this type of processing?

Solely automated individual decision-making - including profiling - with legal or similarly significant effects is restricted, although this restriction can be lifted in certain circumstances.

You can only carry out solely automated decision-making with legal or similarly significant effects if the decision is:

If you’re using special category personal data you can only carry out processing described in Article 22(1) if:

What else do we need to consider?

Because this type of processing is considered to be high-risk the GDPR requires you to carry out a Data Protection Impact Assessment (DPIA) to show that you have identified and assessed what those risks are and how you will address them.

As well as restricting the circumstances in which you can carry out solely automated individual decision-making (as described in Article 22(1)) the GDPR also:

These provisions are designed to increase individuals’ understanding of how you might be using their personal data.

You must:

What if Article 22 doesn’t apply to our processing?

Article 22 applies to solely automated individual decision-making, including profiling, with legal or similarly significant effects.

If your processing does not match this definition then you can continue to carry out profiling and automated decision-making.

But you must still comply with the GDPR principles.

You must identify and record your lawful basis for the processing.

You need to have processes in place so people can exercise their rights.

Individuals have a right to object to profiling in certain circumstances. You must bring details of this right specifically to their attention.

 

In more detail – European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

WP29 has adopted guidelines on Automated individual decision-making and Profiling, which have been endorsed by the EDPB.

Other relevant guidelines published by WP29 and endorsed by the EDPB include:

WP29 guidelines on Data Protection Impact Assessment

Accountability and governance

At a glance

Checklist

We take responsibility for complying with the GDPR, at the highest management level and throughout our organisation.

We keep evidence of the steps we take to comply with the GDPR.

We put in place appropriate technical and organisational measures, such as:

adopting and implementing data protection policies (where proportionate);

taking a ‘data protection by design and default’ approach - putting appropriate data protection measures in place throughout the entire lifecycle of our processing operations;

putting written contracts in place with organisations that process personal data on our behalf;

maintaining documentation of our processing activities;

implementing appropriate security measures;

recording and, where necessary, reporting personal data breaches;

carrying out data protection impact assessments for uses of personal data that are likely to result in high risk to individuals’ interests;

appointing a data protection officer (where necessary); and

adhering to relevant codes of conduct and signing up to certification schemes (where possible).

We review and update our accountability measures at appropriate intervals.

In brief

What's new under the GDPR?

One of the biggest changes introduced by the GDPR is around accountability – a new data protection principle that says organisations are responsible for, and must be able to demonstrate, compliance with the other principles. Although these obligations were implicit in the Data Protection Act 1998 (1998 Act), the GDPR makes them explicit.

You now need to be proactive about data protection, and evidence the steps you take to meet your obligations and protect people’s rights. Good practice tools that the ICO has championed for a long time, such as privacy impact assessments and privacy by design, are now formally recognised and legally required in some circumstances.

Organisations that already adopt a best practice approach to compliance with the 1998 Act should not find it too difficult to adapt to the new requirements. But you should review the measures you take to comply with the 1998 Act, update them for the GDPR if necessary, and stand ready to demonstrate your compliance under the GDPR.

What is accountability?

There are two key elements. First, the accountability principle makes it clear that you are responsible for complying with the GDPR. Second, you must be able to demonstrate your compliance.

Article 5(2) of the GDPR says:

“The controller shall be responsible for, and be able to demonstrate compliance with, paragraph 1 [the other data protection principles]”

Further reading – ICO guidance    

Principles

Why is accountability important?

Taking responsibility for what you do with personal data, and demonstrating the steps you have taken to protect people’s rights not only results in better legal compliance, it also offers you a competitive edge. Accountability is a real opportunity for you to show, and prove, how you respect people’s privacy. This can help you to develop and sustain people’s trust.                

Furthermore, if something does go wrong, then being able to show that you actively considered the risks and put in place measures and safeguards can help you provide mitigation against any potential enforcement action. On the other hand, if you can’t show good data protection practices, it may leave you open to fines and reputational damage.

What do we need to do?

Accountability is not a box-ticking exercise. Being responsible for compliance with the GDPR means that you need to be proactive and organised about your approach to data protection, while demonstrating your compliance means that you must be able to evidence the steps you take to comply.

To achieve this, if you are a larger organisation you may choose to put in place a privacy management framework. This can help you create a culture of commitment to data protection, by embedding systematic and demonstrable compliance across your organisation. Amongst other things, your framework should include:

If you are a smaller organisation you will most likely benefit from a smaller scale approach to accountability. Amongst other things you should:

Article 24(1) of the GDPR says that:

While the GDPR does not specify an exhaustive list of things you need to do to be accountable, it does set out several different measures you can take that will help you get there. These are summarised under the headings below, with links to the relevant parts of the guide. Some measures you are obliged to take and some are voluntary. It will differ depending on what personal data you have and what you do with it. These measures can form the basis of your programme controls if you opt to put in place a privacy management framework across your organisation.

Should we implement data protection policies?

For many organisations, putting in place relevant policies is a fundamental part of their approach to data protection compliance. The GDPR explicitly says that, where proportionate, implementing data protection policies is one of the measures you can take to ensure, and demonstrate, compliance.

What you have policies for, and their level of detail, depends on what you do with personal data. If, for instance, you handle large volumes of personal data, or particularly sensitive information such as special category data, then you should take greater care to ensure that your policies are robust and comprehensive.

As well as drafting data protection policies, you should also be able to show that you have implemented and adhered to them. This could include awareness raising, training, monitoring and audits – all tasks that your data protection officer can undertake (see below for more on data protection officers).

Should we adopt a ‘data protection by design and default’ approach?

Privacy by design has long been seen as a good practice approach when designing new products, processes and systems that use personal data. Under the heading ‘data protection by design and by default’, the GDPR legally requires you to take this approach.

Data protection by design and default is an integral element of being accountable. It is about embedding data protection into everything you do, throughout all your processing operations. The GDPR suggests measures that may be appropriate such as minimising the data you collect, applying pseudonymisation techniques, and improving security features.

Integrating data protection considerations into your operations helps you to comply with your obligations, while documenting the decisions you take (often in data protection impact assessments – see below) demonstrates this.

Further reading – ICO guidance     

Data protection by design and default

Anonymisation code of practice

Do we need to use contracts?

Whenever a controller uses a processor to handle personal data on their behalf, it needs to put in place a written contract that sets out each party’s responsibilities and liabilities.

Contracts must include certain specific terms as a minimum, such as requiring the processor to take appropriate measures to ensure the security of processing and obliging it to assist the controller in allowing individuals to exercise their rights under the GDPR.

Using clear and comprehensive contracts with your processors helps to ensure that everyone understands their data protection obligations and is a good way to demonstrate this formally.

Further reading – ICO guidance

Contracts

What documentation should we maintain?

Under Article 30 of the GDPR, most organisations are required to maintain a record of their processing activities, covering areas such as processing purposes, data sharing and retention.

Documenting this information is a great way to take stock of what you do with personal data. Knowing what information you have, where it is and what you do with it makes it much easier for you to comply with other aspects of the GDPR such as making sure that the information you hold about people is accurate and secure.

As well as your record of processing activities under Article 30, you also need to document other things to show your compliance with the GDPR. For instance, you need to keep records of consent and any personal data breaches.

Further reading – ICO guidance

Documentation

Consent

Personal data breaches

What security measures should we put in place?

The GDPR repeats the requirement to implement technical and organisational measures to comply with the GDPR in the context of security. It says that these measures should ensure a level of security appropriate to the risk.

You need to implement security measures if you are handling any type of personal data, but what you put in place depends on your particular circumstances. You need to ensure the confidentiality, integrity and availability of the systems and services you use to process personal data.

Amongst other things, this may include information security policies, access controls, security monitoring, and recovery plans.

Further reading – ICO guidance

Security

How do we record and report personal data breaches?

You must report certain types of personal data breach to the relevant supervisory authority (for the UK, this is the ICO), and in some circumstances, to the affected individuals as well.

Additionally, the GDPR says that you must keep a record of any personal data breaches, regardless of whether you need to report them or not.

You need to be able to detect, investigate, report (both internally and externally) and document any breaches. Having robust policies, procedures and reporting structures helps you do this.

Further reading – ICO guidance

Personal data breaches

 

Further reading – European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

WP29 adopted guidelines on Personal data breach notification, which have been adopted by the EDPB.

Should we carry out data protection impact assessments (DPIAs)?

A DPIA is an essential accountability tool and a key part of taking a data protection by design approach to what you do. It helps you to identify and minimise the data protection risks of any new projects you undertake.

A DPIA is a legal requirement before carrying out processing likely to result in high risk to individuals’ interests.

When done properly, a DPIA helps you assess how to comply with the requirements of the GDPR, while also acting as documented evidence of your decision-making and the steps you took.

Further reading – ICO guidance

Data protection impact assessments

 

Further reading – European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

WP29 adopted guidelines on data protection impact assessments, which have been endorsed by the EDPB.

Should we assign a data protection officer (DPO)? 

Some organisations are required to appoint a DPO. A DPO’s tasks include advising you about the GDPR, monitoring compliance and training staff.

Your DPO must report to your highest level of management, operate independently, and have adequate resources to carry out their tasks.

Even if you’re not obliged to appoint a DPO, it is very important that you have sufficient staff, skills, and appropriate reporting structures in place to meet your obligations under the GDPR.

Further reading – ICO guidance

Data protection officers

 

Further reading – European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

WP29 adopted guidelines on data protection officers, which have been endorsed by the EDPB.

Should we adhere to codes of conduct and certification schemes?

Under the GDPR, trade associations and representative bodies may draw up codes of conduct covering topics such as fair and transparent processing, pseudonymisation, and the exercise of people’s rights.                              

In addition, supervisory authorities or accredited certification bodies can issue certification of the data protection compliance of products and services.

Both codes of conduct and certification are voluntary, but they are an excellent way of verifying and demonstrating that you comply with the GDPR.

Further reading – ICO guidance

Codes of conduct and certification

What else should we consider?

The above measures can help to support an accountable approach to data protection, but it is not limited to these. You need to be able to prove what steps you have taken to comply. In practice this means keeping records of what you do and justifying your decisions.

Example

A company wants to use the personal data it holds for a new purpose. It carries out an assessment in line with Article 6(4) of the GDPR, and determines that the new purpose is compatible with the original purpose for which it collected the personal data. Although this provision of the GDPR does not specify that the company must document its compatibility assessment, it knows that to be accountable, it needs to be able to prove that their handling of personal data is compliant with the GDPR. The company therefore keeps a record of the compatibility assessment, including its rationale for the decision and the appropriate safeguards it put in place.

Accountability is not just about being answerable to the regulator; you must also demonstrate your compliance to individuals. Amongst other things, individuals have the right to be informed about what personal data you collect, why you use it and who you share it with. Additionally, if you use techniques such as artificial intelligence and machine learning to make decisions about people, in certain cases individuals have the right to hold you to account by requesting explanations of those decisions and contesting them. You therefore need to find effective ways to provide information to people about what you do with their personal data, and explain and review automated decisions.

The obligations that accountability places on you are ongoing – you cannot simply sign off a particular processing operation as ‘accountable’ and move on. You must review the measures you implement at appropriate intervals to ensure that they remain effective. You should update measures that are no longer fit for purpose. If you regularly change what you do with personal data, or the types of information that you collect, you should review and update your measures frequently, remembering to document what you do and why.

Contracts

At a glance

Checklists

Controller and processor contracts checklist

Our contracts include the following compulsory details:

☐ the subject matter and duration of the processing;

☐ the nature and purpose of the processing;

☐ the type of personal data and categories of data subject; and

☐ the obligations and rights of the controller.

Our contracts include the following compulsory terms:

☐ the processor must only act on the written instructions of the controller (unless required by law to act without such instructions);

☐ the processor must ensure that people processing the data are subject to a duty of confidence;

☐ the processor must take appropriate measures to ensure the security of processing;

☐ the processor must only engage a sub-processor with the prior consent of the data controller and a written contract;

☐ the processor must assist the data controller in providing subject access and allowing data subjects to exercise their rights under the GDPR;

☐ the processor must assist the data controller in meeting its GDPR obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments;

☐ the processor must delete or return all personal data to the controller as requested at the end of the contract; and

☐ the processor must submit to audits and inspections, provide the controller with whatever information it needs to ensure that they are both meeting their Article 28 obligations, and tell the controller immediately if it is asked to do something infringing the GDPR or other data protection law of the EU or a member state.

As a matter of good practice, our contracts:

☐ state that nothing within the contract relieves the processor of its own direct responsibilities and liabilities under the GDPR; and

☐ reflect any indemnity that has been agreed.

Processors’ responsibilities and liabilities checklist

In addition to the Article 28.3 contractual obligations set out in the controller and processor contracts checklist, a processor has the following direct responsibilities under the GDPR. The processor must:

☐ only act on the written instructions of the controller (Article 29);

☐ not use a sub-processor without the prior written authorisation of the controller (Article 28.2);

☐ co-operate with supervisory authorities (such as the ICO) in accordance with Article 31;

☐ ensure the security of its processing in accordance with Article 32;

☐ keep records of its processing activities in accordance with Article 30.2;

☐ notify any personal data breaches to the controller in accordance with Article 33;

☐ employ a data protection officer if required in accordance with Article 37; and

☐ appoint (in writing) a representative within the European Union if required in accordance with Article 27.

A processor should also be aware that:

☐ it may be subject to investigative and corrective powers of supervisory authorities (such as the ICO) under Article 58 of the GDPR;

☐ if it fails to meet its obligations, it may be subject to an administrative fine under Article 83 of the GDPR;

☐ if it fails to meet its GDPR obligations it may be subject to a penalty under Article 84 of the GDPR; and

☐ if it fails to meet its GDPR obligations it may have to pay compensation under Article 82 of the GDPR.

In brief

What's new?

When is a contract needed?

Whenever a controller uses a processor (a third party who processes personal data on behalf of the controller) it needs to have a written contract in place. Similarly, if a processor employs another processor it needs to have a written contract in place.

Why are contracts between controllers and processors important?

Contracts between controllers and processors ensure that they both understand their obligations, responsibilities and liabilities. They help them to comply with the GDPR, and help controllers to demonstrate their compliance with the GDPR. The use of contracts by controllers and processors may also increase data subjects’ confidence in the handling of their personal data.

What needs to be included in the contract?

Contracts must set out the subject matter and duration of the processing, the nature and purpose of the processing, the type of personal data and categories of data subject, and the obligations and rights of the controller.

Contracts must also include as a minimum the following terms, requiring the processor to:

Can standard contracts clauses be used?

The GDPR allows standard contractual clauses from the EU Commission or a Supervisory Authority (such as the ICO) to be used in contracts between controllers and processors. However, no standard clauses are currently available.

The GDPR also allows these standard contractual clauses to form part of a code of conduct or certification mechanism to demonstrate compliant processing. However, no schemes are currently available.

What responsibilities and liabilities do processors have in their own right?

A processor must only act on the documented instructions of a controller. If a processor determines the purpose and means of processing (rather than acting only on the instructions of the controller) then it will be considered to be a controller and will have the same liability as a controller.

In addition to its contractual obligations to the controller, under the GDPR a processor also has the following direct responsibilities:

If a processor fails to meet any of these obligations, or acts outside or against the instructions of the controller, then it may be liable to pay damages in legal proceedings, or be subject to fines or other penalties or corrective measures.

If a processor uses a sub-processor then it will, as the original processor, remain directly liable to the controller for the performance of the sub-processor’s obligations.

In more detail – ICO guidance

The deadline for responses to our draft GDPR guidance on contracts and liabilities for controllers and processors has now passed. We are analysing the feedback and this will feed into the final version.

 

Documentation

At a glance

Checklists

Documentation of processing activities – requirements 

 If we are a controller for the personal data we process, we document all the applicable information under Article 30(1) of the GDPR.

 If we are a processor for the personal data we process, we document all the applicable information under Article 30(2) of the GDPR.

If we process special category or criminal conviction and offence data, we document:

 the condition for processing we rely on in the Data Protection Act 2018 (DPA 2018);

 the lawful basis for our processing; and

 whether we retain and erase the personal data in accordance with our policy document.

where required in schedule 1 of the DPA 2018.

 We document our processing activities in writing.

 We document our processing activities in a granular way with meaningful links between the different pieces of information.

 We conduct regular reviews of the personal data we process and update our documentation accordingly.

Documentation of processing activities – best practice

When preparing to document our processing activities we:

 do information audits to find out what personal data our organisation holds;

 distribute questionnaires and talk to staff across the organisation to get a more complete picture of our processing activities; and

 review our policies, procedures, contracts and agreements to address areas such as retention, security and data sharing.

As part of our record of processing activities we document, or link to documentation, on:

 information required for privacy notices;

 records of consent;

 controller-processor contracts;

 the location of personal data;

 Data Protection Impact Assessment reports; and

 records of personal data breaches.

 We document our processing activities in electronic form so we can add, remove and amend information easily.

In brief

What’s new under the GDPR?

What is documentation?

Who needs to document their processing activities?

What do we need to document under Article 30 of the GDPR?

You must document the following information:

Should we document anything else?

As part of your record of processing activities, it can be useful to document (or link to documentation of) other aspects of your compliance with the GDPR and the UK’s Data Protection Act 2018. Such documentation may include:

How do we document our processing activities?

We have developed basic templates to help you document your processing activities.

In more detail – ICO guidance

We have produced more detailed guidance on documentation.

 

In more detail - European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

WP29 published a position paper on Article 30(5) (the exemption for small and medium-sized organisations), which has been endorsed by the EDPB.

Data protection by design and default

At a glance

Checklists

We consider data protection issues as part of the design and implementation of systems, services, products and business practices.

We make data protection an essential component of the core functionality of our processing systems and services.

We anticipate risks and privacy-invasive events before they occur, and take steps to prevent harm to individuals.

We only process the personal data that we need for our purposes(s), and that we only use the data for those purposes.

We ensure that personal data is automatically protected in any IT system, service, product, and/or business practice, so that individuals should not have to take any specific action to protect their privacy.

We provide the identity and contact information of those responsible for data protection both within our organisation and to individuals.

We adopt a ‘plain language’ policy for any public documents so that individuals easily understand what we are doing with their personal data.

We provide individuals with tools so they can determine how we are using their personal data, and whether our policies are being properly enforced.

We offer strong privacy defaults, user-friendly options and controls, and respect user preferences.

We only use data processors that provide sufficient guarantees of their technical and organisational measures for data protection by design.

When we use other systems, services or products in our processing activities, we make sure that we only use those whose designers and manufacturers take data protection issues into account.

We use privacy-enhancing technologies (PETs) to assist us in complying with our data protection by design obligations.

In brief

What’s new in the GDPR?

The GDPR introduces new obligations that require you to integrate data protection concerns into every aspect of your processing activities. This approach is ‘data protection by design and by default’. These are key elements of the GDPR’s risk-based approach and its focus on accountability, ie you are able to demonstrate how you are complying with its requirements.

However, data protection by design and by default is not new. It is essentially the GDPR’s version of ‘privacy by design’, an approach that the ICO has championed for many years. Although privacy by design and data protection by design are not precisely the same, there are well-established privacy by design principles and practices that can apply in this context.

Some organisations already adopt a ‘privacy by design approach’ as a matter of good practice. If this is the case for you, then you are well-placed to meet the requirements of data protection by design and by default. Although you may still need to review your processes and procedures to ensure that you are meeting your obligations.

The biggest change is that whilst privacy by design was good practice under the Data Protection Act 1998 (the 1998 Act), data protection by design and by default are legal requirements under the GDPR.

What does the GDPR say about data protection by design and by default?

Articles 25(1) and 25(2) of the GDPR outline your obligations concerning data protection by design and by default.

Article 25(1) specifies the requirements for data protection by design:

‘Taking into account the state of the art, the cost of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for rights and freedoms of natural persons posed by the processing, the controller shall, both at the time of the  determination of the means for processing and at the time of the processing itself, implement appropriate technical and organisational measures, such as pseudonymisation, which are designed to implement data-protection principles, such as data minimisation, in an effective manner and to integrate the necessary safeguards into the processing in order to meet the requirements of this Regulation and protect the rights of data subjects.’

Article 25(2) specifies the requirements for data protection by default:

‘The controller shall implement appropriate technical and organisational measures for ensuring that, by default, only personal data which are necessary for each specific purpose of the processing are processed. That obligation applies to the amount of personal data collected, the extent of their processing, the period of their storage and their accessibility. In particular, such measures shall ensure that by default personal data are not made accessible without the individual's intervention to an indefinite number of natural persons.’

Article 25(3) states that if you adhere to an approved certification under Article 42, you can use this as one way of demonstrating your compliance with these requirements.

What is data protection by design?

Data protection by design is ultimately an approach that ensures you consider privacy and data protection issues at the design phase of any system, service, product or process and then throughout the lifecycle.

As expressed by the GDPR, it requires you to:

In essence this means you have to integrate or ‘bake in’ data protection into your processing activities and business practices.

Data protection by design has broad application. Examples include:

The underlying concepts of data protection by design are not new. Under the name ‘privacy by design’ they have existed for many years. Data protection by design essentially inserts the privacy by design approach into data protection law.

Under the 1998 Act, the ICO supported this approach as it helped you to comply with your data protection obligations. It is now a legal requirement.

What is data protection by default?

Data protection by default requires you to ensure that you only process the data that is necessary to achieve your specific purpose. It links to the fundamental data protection principles of data minimisation and purpose limitation.

You have to process some personal data to achieve your purpose(s). Data protection by default means you need to specify this data before the processing starts, appropriately inform individuals and only process the data you need for your purpose. It does not require you to adopt a ‘default to off’ solution.  What you need to do depends on the circumstances of your processing and the risks posed to individuals.

Nevertheless, you must consider things like:

Who is responsible for complying with data protection by design and by default?

Article 25 specifies that, as the controller, you have responsibility for complying with data protection by design and by default. Depending on your circumstances, you may have different requirements for different areas within your organisation. For example:

This may not apply to all organisations, of course. However, data protection by design is about adopting an organisation-wide approach to data protection, and ‘baking in’ privacy considerations into any processing activity you undertake. It doesn’t apply only if you are the type of organisation that has your own software developers and systems architects.

In considering whether to impose a penalty, the ICO will take into account the technical and organisational measures you have put in place in respect of data protection by design. Additionally, under the Data Protection Act 2018 (DPA 2018) we can issue an Enforcement Notice against you for any failings in respect of Article 25.

What about data processors?

If you use another organisation to process personal data on your behalf, then that organisation is a data processor under the GDPR.  

Article 25 does not mention data processors specifically. However, Article 28 specifies the considerations you must take whenever you are selecting a processor. For example, you must only use processors that provide:

‘sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of this Regulation and ensure the protection of the rights of the data subject’

This requirement covers both data protection by design in Article 25 as well as your security obligations under Article 32. Your processor cannot necessarily assist you with your data protection by design obligations (unlike with security measures), however you must only use processors that provide sufficient guarantees to meet the GDPR’s requirements.

What about other parties?

Data protection by design and by default can also impact organisations other than controllers and processors. Depending on your processing activity, other parties may be involved, even if this is just where you purchase a product or service that you then use in your processing. Examples include manufacturers, product developers, application developers and service providers.

Recital 78 extends the concepts of data protection by design to other organisations, although it does not place a requirement on them to comply – that remains with you as the controller. It says:

‘When developing, designing, selecting and using applications, services and products that are based on the processing of personal data or process personal data to fulfil their task, producers of the products, services and applications should be encouraged to take into account the right to data protection when developing and designing such products, services and applications and, with regard to the state of the art, to make sure that controllers and processors are able to fulfil their data protection obligations.’

Therefore, when considering what products and services you need for your processing, you should look to choose those where the designers and developers have taken data protection into account. This can help to ensure that your processing adheres to the data protection by design requirements.

If you are a developer or designer of products, services and applications, the GDPR places no specific obligations on you about how you design and build these products. (You may have specific obligations as a controller in your own right, eg for any employee data.) However, you should note that controllers are required to consider data protection by design when selecting services and products for use in their data processing activities – therefore if you design these products with data protection in mind, you may be in a better position.

What are we required to do?

You must put in place appropriate technical and organisational measures designed to implement the data protection principles and safeguard individual rights.  

There is no ‘one size fits all’ method to do this, and no one set of measures that you should put in place. It depends on your circumstances.

The key is that you consider data protection issues from the start of any processing activity, and adopt appropriate policies and measures that meet the requirements of data protection by design and by default.

Some examples of how you can do this include:

This is not an exhaustive list. Complying with data protection by design and by default may require you to do much more than the above.

However, we cannot provide a complete guide to all aspects of data protection by design and by default in all circumstances. This guidance identifies the main points for you to consider. Depending on the processing you are doing, you may need to obtain specialist advice that goes beyond the scope of this guidance.

When should we do this?

You should begin data protection by design at the initial phase of any system, service, product, or process. You should start by considering your intended processing activities, the risks that these may pose to individuals, and the possible measures available to ensure that you comply with the data protection principles and protect individual rights. These considerations must cover:

This is similar to the information risk assessment you should do when considering your security measures.

These considerations lead into the second step, where you put in place actual technical and organisational measures to implement the data protection principles and integrate safeguards into your processing.  

This is why there is no single solution or process that applies to every organisation or every processing activity, although there are a number of commonalities that may apply to your specific circumstances as described below.

The GDPR requires you to take these actions:

What are the underlying concepts of data protection by design and by default?

The underlying concepts are essentially expressed in the seven ‘foundational principles’ of privacy by design, as developed by the Information and Privacy Commissioner of Ontario.

Although privacy by design is not necessarily equivalent to data protection by design, these foundational principles can nevertheless underpin any approach you take.

‘Proactive not reactive; preventative not remedial’

You should take a proactive approach to data protection and anticipate privacy issues and risks before they happen, instead of waiting until after the fact. This doesn’t just apply in the context of systems design – it involves developing a culture of ‘privacy awareness’ across your organisation.

‘Privacy as the default setting’           

You should design any system, service, product, and/or business practice to protect personal data automatically. With privacy built into the system, the individual does not have to take any steps to protect their data – their privacy remains intact without them having to do anything.

‘Privacy embedded into design’

Embed data protection into the design of any systems, services, products and business practices. You should ensure data protection forms part of the core functions of any system or service – essentially, it becomes integral to these systems and services.

‘Full functionality – positive sum, not zero sum’

Also referred to as ‘win-win’, this principle is essentially about avoiding trade-offs, such the belief that in any system or service it is only possible to have privacy or security, not privacy and security. Instead, you should look to incorporate all legitimate objectives whilst ensuring you comply with your obligations.

‘End-to-end security – full lifecycle protection’

Put in place strong security measures from the beginning, and extend this security throughout the ‘data lifecycle’ – ie process the data securely and then destroy it securely when you no longer need it. 

‘Visibility and transparency – keep it open’

Ensure that whatever business practice or technology you use operates according to its premises and objectives, and is independently verifiable. It is also about ensuring visibility and transparency to individuals, such as making sure they know what data you process and for what purpose(s) you process it.   

‘Respect for user privacy – keep it user-centric’

Keep the interest of individuals paramount in the design and implementation of any system or service, eg by offering strong privacy defaults, providing individuals with controls, and ensuring appropriate notice is given.

How do we do this in practice?

One means of putting these concepts into practice is to develop a set of practical, actionable guidelines that you can use in your organisation, framed by your assessment of the risks posed and the measures available to you. You could base these upon the seven foundational principles.

However, how you go about doing this depends on your circumstances – who you are, what you are doing, the resources you have available, and the nature of the data you process. You may not need to have a set of documents and organisational controls in place, although in some situations you will be required to have certain documents available concerning your processing.

The key is to take an organisational approach that achieves certain outcomes, such as ensuring that:

Many of these relate to other obligations in the GDPR, such as transparency requirements, documentation, Data Protection Officers and DPIAs. This shows the broad nature of data protection by design and how it applies to all aspects of your processing. Our guidance on these topics will help you when you consider the measures you need to put in place for data protection by design and by default.

 

In more detail – European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

WP29 has produced guidelines on transparency, data protection officers, and data protection impact assessments, which have been endorsed by the EDPB.

 

Further reading

We will produce further guidance on how you can implement data protection by design soon. However, the Information and Privacy Commissioner of Ontario has published guidance on how organisations can ‘operationalise’ privacy by design, which may assist you.

How do data protection by design and by default link to data protection impact assessments (DPIAs)?

A DPIA is a tool that you can use to identify and reduce the data protection risks of your processing activities. They can also help you to design more efficient and effective processes for handling personal data.

DPIAs are an integral part of data protection by design and by default. For example, they can determine the type of technical and organisational measures you need in order to ensure your processing complies with the data protection principles.

However, a DPIA is only required in certain circumstances, such as where the processing is likely to result in a risk to rights and freedoms, though it is good practice to undertake a DPIA anyway. In contrast, data protection by design is a broader concept, as it applies organisationally and requires you to take certain considerations even before you decide whether your processing is likely to result in a high risk or not.

In more detail – ICO guidance

Read our guidance on DPIAs in the Guide to the GDPR.

We have also produced more detailed guidance on DPIAs, including a template that you can use and a list of processing operations that we consider require DPIAs to be undertaken.

 

In more detail – European Data Protection Board           

WP29 produced guidelines on data protection impact assessments, which have been endorsed by the EDPB.

What is the role of privacy-enhancing technologies (PETs)?

Privacy-enhancing technologies or PETs are technologies that embody fundamental data protection principles by minimising personal data use, maximising data security, and empowering individuals. A useful definition from the European Union Agency for Network and Information Security (ENISA) refers to PETs as:

‘software and hardware solutions, ie systems encompassing technical processes, methods or knowledge to achieve specific privacy or data protection functionality or to protect against risks of privacy of an individual or a group of natural persons.’

PETs link closely to the concept of privacy by design, and therefore apply to the technical measures you can put in place. They can assist you in complying with the data protection principles and are a means of implementing data protection by design within your organisation on a technical level.

Further reading

We will provide further guidance on PETs in the near future. ENISA has also published research reports on PETs that may assist you.

What about international transfers?

Data protection by design also applies in the context of international transfers in cases where you intend to transfer personal data overseas to a third country that does not have an adequacy decision.

You need to ensure that, whatever mechanism you use, appropriate safeguards are in place for these transfers. As detailed in Recital 108, these safeguards need to include compliance with data protection by design and by default.

In more detail – ICO guidance

Read our guidance on international transfers.

What is the role of certification?

Article 25(3) says that:

‘An approved certification mechanism pursuant to Article 42 may be used as an element to demonstrate compliance with the requirements set out in paragraphs 1 and 2 of this Article.’

This means that an approved certification mechanism, once one is available, can assist you in showing how you are complying with, and implementing, data protection by design and by default.

In more detail – European Data Protection Board

The EDPB published for consultation draft guidelines on certification and identifying certification criteria in accordance with Articles 42 and 43 of the Regulation 2016/679 on 30 May 2018. The consultation closed on 12 July 2018.

What additional guidance is available?                

The ICO will publish more detailed guidance about data protection by design and privacy enhancing technologies soon, as well as how these concepts apply in the context of the code of practice on age appropriate design in the DPA 2018 section 123.

In the meantime, there are a number of publications about the privacy by design approach. We have summarised some of these below.

Further reading

The Information and Privacy Commissioner of Ontario (IPC) originated the concept of privacy by design in the 1990s. The IPC has a number of relevant publications about the concept and how you can implement it in your organisation, including:

The European Union Agency for Network and Information Security (ENISA) has also published research and guidance on privacy by design, including:

The Norwegian data protection authority (Datatilsynet) has produced guidance on how software developers can implement data protection by design and by default.

Data protection impact assessments

Click here for information about consulting the ICO about your data protection impact assessment.

At a glance

Checklists

DPIA awareness checklist

We provide training so that our staff understand the need to consider a DPIA at the early stages of any plan involving personal data.

Our existing policies, processes and procedures include references to DPIA requirements.

We understand the types of processing that require a DPIA, and use the screening checklist to identify the need for a DPIA, where necessary.

We have created and documented a DPIA process.

We provide training for relevant staff on how to carry out a DPIA.

DPIA screening checklist

We always carry out a DPIA if we plan to:

Use systematic and extensive profiling or automated decision-making to make significant decisions about people.

Process special category data or criminal offence data on a large scale.

Systematically monitor a publicly accessible place on a large scale.

Use new technologies.

Use profiling, automated decision-making or special category data to help make decisions on someone’s access to a service, opportunity or benefit.

Carry out profiling on a large scale.

Process biometric or genetic data.

Combine, compare or match data from multiple sources.

Process personal data without providing a privacy notice directly to the individual.

Process personal data in a way which involves tracking individuals’ online or offline location or behaviour.

Process children’s personal data for profiling or automated decision-making or for marketing purposes, or offer online services directly to them.

Process personal data which could result in a risk of physical harm in the event of a security breach.

We consider whether to do a DPIA if we plan to carry out any other:

Evaluation or scoring.

Automated decision-making with significant effects.

Systematic processing of sensitive data or data of a highly personal nature.

Processing on a large scale.

Processing of data concerning vulnerable data subjects.

Innovative technological or organisational solutions.

Processing involving preventing data subjects from exercising a right or using a service or contract.

We consider carrying out a DPIA in any major project involving the use of personal data.

If we decide not to carry out a DPIA, we document our reasons.

We carry out a new DPIA if there is a change to the nature, scope, context or purposes of our processing.

DPIA process checklist

We describe the nature, scope, context and purposes of the processing.

We ask our data processors to help us understand and document their processing activities and identify any associated risks.

We consider how best to consult individuals (or their representatives) and other relevant stakeholders.

We ask for the advice of our data protection officer.

We check that the processing is necessary for and proportionate to our purposes, and describe how we will ensure data protection compliance.

We do an objective assessment of the likelihood and severity of any risks to individuals’ rights and interests.

We identify measures we can put in place to eliminate or reduce high risks.

We record our decision-making in the outcome of the DPIA, including any difference of opinion with our DPO or individuals consulted.

We implement the measures we identified, and integrate them into our project plan.

We consult the ICO before processing, if we cannot mitigate high risks.

We keep our DPIAs under review and revisit them when necessary.

In brief

What’s new under the GDPR?

The GDPR introduces a new obligation to do a DPIA before carrying out types of processing likely to result in high risk to individuals’ interests. If your DPIA identifies a high risk that you cannot mitigate, you must consult the ICO.

This is a key element of the new focus on accountability and data protection by design.

Some organisations already carry out privacy impact assessments (PIAs) as a matter of good practice. If so, the concept will be familiar, but you still need to review your processes to make sure they comply with GDPR requirements. DPIAs are now mandatory in some cases, and there are specific legal requirements for content and process.

If you have not already got a PIA process, you need to design a new DPIA process and embed this into your organisation’s policies and procedures.

In the run-up to 25 May 2018, you also need to review your existing processing operations and decide whether you need to do a DPIA, or review your PIA, for anything which is likely to be high risk. You do not need to do a DPIA if you have already considered the relevant risks and safeguards in another way, unless there has been a significant change to the nature, scope, context or purposes of the processing since that previous assessment.

What is a DPIA?

A DPIA is a way for you to systematically and comprehensively analyse your processing and help you identify and minimise data protection risks.

DPIAs should consider compliance risks, but also broader risks to the rights and freedoms of individuals, including the potential for any significant social or economic disadvantage. The focus is on the potential for harm - to individuals or to society at large, whether it is physical, material or non-material.

To assess the level of risk, a DPIA must consider both the likelihood and the severity of any impact on individuals.

A DPIA does not have to eradicate the risks altogether, but should help to minimise risks and assess whether or not remaining risks are justified.

DPIAs are a legal requirement for processing that is likely to be high risk. But an effective DPIA can also bring broader compliance, financial and reputational benefits, helping you demonstrate accountability and building trust and engagement with individuals.

A DPIA may cover a single processing operation or a group of similar processing operations. A group of controllers can do a joint DPIA.

It’s important to embed DPIAs into your organisational processes and ensure the outcome can influence your plans. A DPIA is not a one-off exercise and you should see it as an ongoing process, and regularly review it.

When do we need a DPIA?

You must do a DPIA before you begin any type of processing which is “likely to result in a high risk”. This means that although you have not yet assessed the actual level of risk you need to screen for factors that point to the potential for a widespread or serious impact on individuals.

In particular, the GDPR says you must do a DPIA if you plan to:

The ICO also requires you to do a DPIA if you plan to:

You should also think carefully about doing a DPIA for any other processing that is large scale, involves profiling or monitoring, decides on access to services or opportunities, or involves sensitive data or vulnerable individuals.

Even if there is no specific indication of likely high risk, it is good practice to do a DPIA for any major new project involving the use of personal data. You can use or adapt the checklists to help you carry out this screening exercise.

How do we carry out a DPIA?

A DPIA should begin early in the life of a project, before you start your processing, and run alongside the planning and development process. It should include these steps:

You must seek the advice of your data protection officer (if you have one). You should also consult with individuals and other stakeholders throughout this process.

The process is designed to be flexible and scalable. You can use or adapt our sample DPIA template, or create your own. If you want to create your own, you may want to refer to the European guidelines which set out Criteria for an acceptable DPIA.

Although publishing a DPIA is not a requirement of GDPR, you should actively consider the benefits of publication. As well as demonstrating compliance, publication can help engender trust and confidence.  We would therefore recommend that you publish your DPIAs, were possible, removing sensitive details if necessary.

Do we need to consult the ICO?

You don’t need to send every DPIA to the ICO and we expect the percentage sent to us to be small. But you must consult the ICO if your DPIA identifies a high risk and you cannot take measures to reduce that risk. You cannot begin the processing until you have consulted us.

If you want your project to proceed effectively then investing time in producing a comprehensive DPIA may prevent any delays later, if you have to consult with the ICO.

You need to email us and attach a copy of your DPIA.

Once we have the information we need, we will generally respond within eight weeks (although we can extend this by a further six weeks in complex cases).

We will provide you with a written response advising you whether the risks are acceptable, or whether you need to take further action. In some cases we may advise you not to carry out the processing because we consider it would be in breach of the GDPR. In appropriate cases we may issue a formal warning or take action to ban the processing altogether.

Further reading – ICO guidance

We have published more detailed guidance on DPIAs.

 

Further reading – European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

WP29 published Guidelines on Data Protection Impact Assessment (DPIA) and determining whether processing is “likely to result in a high risk” for the purposes of Regulation 2016/679 (WP248), which have been endorsed by the EDPB.

Other relevant guidelines include:

Guidelines on Data Protection Officers (‘DPOs’) (WP243)

Guidelines on automated individual decision-making and profiling for the purposes of Regulation 2016/679 (WP251)

Data protection officers

At a glance

Checklists

Appointing a DPO

☐ We are a public authority or body and have appointed a DPO (except if we are a court acting in our judicial capacity).

☐ We are not a public authority or body, but we know whether the nature of our processing activities requires the appointment of a DPO.

☐ We have appointed a DPO based on their professional qualities and expert knowledge of data protection law and practices.

☐ We aren’t required to appoint a DPO under the GDPR but we have decided to do so voluntarily. We understand that the same duties and responsibilities apply had we been required to appoint a DPO. We support our DPO to the same standards.

Position of the DPO

☐ Our DPO reports directly to our highest level of management and is given the required independence to perform their tasks.           

☐ We involve our DPO, in a timely manner, in all issues relating to the protection of personal data.

☐ Our DPO is sufficiently well resourced to be able to perform their tasks.

☐ We do not penalise the DPO for performing their duties.

☐ We ensure that any other tasks or duties we assign our DPO do not result in a conflict of interests with their role as a DPO.

Tasks of the DPO

☐ Our DPO is tasked with monitoring compliance with the GDPR and other data protection laws, our data protection policies, awareness-raising, training, and audits.

☐ We will take account of our DPO’s advice and the information they provide on our data protection obligations.

☐ When carrying out a DPIA, we seek the advice of our DPO who also monitors the process.

☐ Our DPO acts as a contact point for the ICO. They co-operate with the ICO, including during prior consultations under Article 36, and will consult on any other matter.

☐ When performing their tasks, our DPO has due regard to the risk associated with processing operations, and takes into account the nature, scope, context and purposes of processing.

Accessibility of the DPO

☐ Our DPO is easily accessible as a point of contact for our employees, individuals and the ICO.    

☐ We have published the contact details of the DPO and communicated them to the ICO.

In brief

Do we need to appoint a Data Protection Officer?

Under the GDPR, you must appoint a DPO if:

This applies to both controllers and processors. You can appoint a DPO if you wish, even if you aren’t required to. If you decide to voluntarily appoint a DPO you should be aware that the same requirements of the position and tasks apply had the appointment been mandatory.

Regardless of whether the GDPR obliges you to appoint a DPO, you must ensure that your organisation has sufficient staff and resources to discharge your obligations under the GDPR. However, a DPO can help you operate within the law by advising and helping to monitor compliance. In this way, a DPO can be seen to play a key role in your organisation’s data protection governance structure and to help improve accountability.

If you decide that you don’t need to appoint a DPO, either voluntarily or because you don’t meet the above criteria, it’s a good idea to record this decision to help demonstrate compliance with the accountability principle.

What is the definition of a public authority?

Section 7 of the Data Protection Act 2018  defines what a ‘public authority’ and a ‘public body’ are for the purposes of the GDPR.

What are ‘core activities’?

The other two conditions that require you to appoint a DPO only apply when:

Your core activities are the primary business activities of your organisation. So, if you need to process personal data to achieve your key objectives, this is a core activity. This is different to processing personal data for other secondary purposes, which may be something you do all the time (eg payroll or HR information), but which is not part of carrying out your primary objectives.

Example

For most organisations, processing personal data for HR purposes will be a secondary function to their main business activities and so will not be part of their core activities.

However, a HR service provider necessarily processes personal data as part of its core activities to provide HR functions for its client organisations. At the same time, it will also process HR information for its own employees, which will be regarded as an ancillary function and not part of its core activities.

What does ‘regular and systematic monitoring of data subjects on a large scale’ mean?

There are two key elements to this condition requiring you to appoint a DPO. Although the GDPR does not define ‘regular and systematic monitoring’ or ‘large scale’, the Article 29 Working Party (WP29) provided some guidance on these terms in its guidelines on DPOs. WP29 has been replaced by the European Data Protection Board (EDPB) which has endorsed these guidelines.

‘Regular and systematic’ monitoring of data subjects includes all forms of tracking and profiling, both online and offline. An example of this is for the purposes of behavioural advertising.

When determining if processing is on a large scale, the guidelines say you should take the following factors into consideration:

Example

A large retail website uses algorithms to monitor the searches and purchases of its users and, based on this information, it offers recommendations to them. As this takes place continuously and according to predefined criteria, it can be considered as regular and systematic monitoring of data subjects on a large scale.

What does processing special category data and personal data relating to criminal convictions and offences on a large scale mean?

Processing special category data or criminal conviction or offences data carries more risk than other personal data. So when you process this type of data on a large scale you are required to appoint a DPO, who can provide more oversight. Again, the factors relevant to large-scale processing can include:                       

Example

A health insurance company processes a wide range of personal data about a large number of individuals, including medical conditions and other health information. This can be considered as processing special category data on a large scale.

What professional qualities should the DPO have?

What are the tasks of the DPO?               

The DPO’s tasks are defined in Article 39 as:

It’s important to remember that the DPO’s tasks cover all personal data processing activities, not just those that require their appointment under Article 37(1).

Can we assign other tasks to the DPO?

The GDPR says that you can assign further tasks and duties, so long as they don’t result in a conflict of interests with the DPO’s primary tasks.

Example

As an example of assigning other tasks, Article 30 requires that organisations must maintain records of processing operations. There is nothing preventing this task being allocated to the DPO.

Basically this means the DPO cannot hold a position within your organisation that leads him or her to determine the purposes and the means of the processing of personal data. At the same time, the DPO shouldn’t be expected to manage competing objectives that could result in data protection taking a secondary role to business interests.

Examples

A company’s head of marketing plans an advertising campaign, including which of the company’s customers to target, what method of communication and the personal details to use. This person cannot also be the company’s DPO, as the decision-making is likely to lead to a conflict of interests between the campaign’s aims and the company’s data protection obligations.

On the other hand, a public authority could appoint its existing FOI officer / records manager as its DPO. There is no conflict of interests here as these roles are about ensuring information rights compliance, rather than making decisions about the purposes of processing.

Can the DPO be an existing employee?

Yes. As long as the professional duties of the employee are compatible with the duties of the DPO and do not lead to a conflict of interests, you can appoint an existing employee as your DPO, rather than you having to create a new post.

Can we contract out the role of the DPO?

You can contract out the role of DPO externally, based on a service contract with an individual or an organisation. It’s important to be aware that an externally-appointed DPO should have the same position, tasks and duties as an internally-appointed one.

Can we share a DPO with other organisations?

Can we have more than one DPO?

What do we have to do to support the DPO?

You must ensure that:

This shows the importance of the DPO to your organisation and that you must provide sufficient support so they can carry out their role independently. Part of this is the requirement for your DPO to report to the highest level of management. This doesn’t mean the DPO has to be line managed at this level but they must have direct access to give advice to senior managers who are making decisions about personal data processing.

What details do we have to publish about the DPO?

The GDPR requires you to:

This is to enable individuals, your employees and the ICO to contact the DPO as needed. You aren’t required to include the name of the DPO when publishing their contact details but you can choose to provide this if you think it’s necessary or helpful.

You’re also required to provide your DPO’s contact details in the following circumstances:

However, remember you do have to provide your DPO’s name if you report a personal data breach to the ICO and to those individuals affected by it.

Is the DPO responsible for compliance?

The DPO isn’t personally liable for data protection compliance. As the controller or processor it remains your responsibility to comply with the GDPR. Nevertheless, the DPO clearly plays a crucial role in helping you to fulfil your organisation’s data protection obligations.

In more detail - ICO guidance

See the following section of the Guide to GDPRAccountability and governance

See our Guide to freedom of information

 

In more detail – European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

WP29 published guidelines on DPOs and DPO FAQs, which have been endorsed by the EDPB.

Codes of conduct

At a glance

In brief                                                           

Codes of conduct help you to apply the GDPR effectively and allow you to demonstrate your compliance.

Who is responsible for codes of conduct?

Trade associations or bodies representing a sector can create codes of conduct, in consultation with relevant stakeholders, including the public where feasible. They can amend or extend existing codes to comply with the GDPR requirements. They have to submit the draft code to us for approval.

We will assess whether a monitoring body is independent and has expertise in the subject matter/sector. Approved bodies will monitor compliance with the code (except for codes covering public authorities) and help ensure that the code is appropriately robust and trustworthy.

We will:

If a code covers more than one EU country, the relevant supervisory authority will submit it to the European Data Protection Board (EDPB), who will submit their opinion on the code to the European Commission. The Commission may decide that a code is valid across all EU countries.

If a code covers personal data transfers to countries outside of the EU, the European Commission can use legislation to give a code general validity within the Union.

What should codes of conduct address?

Codes of conduct should help you comply with the law, and may cover topics such as:

Codes of conduct can collectively address the specific needs of micro, small and medium enterprises and help them to work together to apply GDPR requirements to the specific issues in their sector. Codes are expected to provide added value for their sector, as they will tailor the GDPR requirements to the sector or area of data processing. They could be a cost effective means to enable compliance with GDPR for a sector and its members.

Why sign up to a code of conduct?

Adhering to a code of conduct shows that you:

Adhering to a code of conduct can help you to:

What are the practical implications for our organisation?

European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

The EDPB are drafting guidelines on codes of conduct and monitoring bodies to cover the provisions in Articles 40-1 and on codes of conduct as appropriate safeguards for international transfers of personal data (Article 46(2)(e)).

Certification

At a glance

In brief

Who is responsible for certification?

Member states, supervisory authorities (such as the ICO), the European Data Protection Board (EDPB) and the Commission will promote certification as a means to enhance transparency and compliance with the Regulation.

In the UK the certification framework will involve:

The ICO has no plans to accredit certification bodies or carry out certification at this time, although the GDPR does allow this.

Currently there are no approved certification schemes or accredited certification bodies for issuing GDPR certificates. Once the certification bodies have been accredited to issue GDPR certificates, you will find this information on ICO’s and UKAS’s websites.

Across EU member states, the EDPB will collate all EU certification schemes in a public register. There is also scope for a European Data Protection Seal.

What is the purpose of certification?

Certification is a way of demonstrating that your processing of personal data complies with the GDPR requirements, in line with the accountability principle. It could help you demonstrate to the ICO that you have a systematic and comprehensive approach to compliance. Certification can also help demonstrate data protection in a practical way to businesses, individuals and regulators. Your customers can use certification as a means to quickly assess the level of data protection of your particular product or service.

The GDPR says that certification is also a means to:

Why should we apply for certification of our processing?

Applying for certification is voluntary. However, if there is an approved certification scheme that covers your processing activity, you may wish to consider working towards it as a way of demonstrating that you comply with the GDPR.

Obtaining certification for your processing can help you to:

What are the practical implications for us?

In more detail - European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

The EDPB published for consultation draft guidelines on certification and identifying certification criteria in accordance with Articles 42 and 43 of the Regulation 2016/679 on 30 May 2018. The consultation ended on 12 July 2018 and the responses are being considered.

The EDPB are also drafting guidelines on certification as an appropriate safeguard for international transfers of personal data (Article 46(2)(f).

 

In more detail – Article 29

The WP29 draft guidelines on accreditation for certification bodies were published for consultation. The consultation closed on 30 March 2018 and the responses are being considered:

http://ec.europa.eu/newsroom/article29/item-detail.cfm?item_id=614486

Guide to the data protection fee

On 25 May 2018, the Data Protection (Charges and Information) Regulations 2018 (the 2018 Regulations) came into force, changing the way we fund our data protection work.

Under the 2018 Regulations, organisations that determine the purpose for which personal data is processed (controllers) must pay a data protection fee unless they are exempt.

The new data protection fee replaces the requirement to ‘notify’ (or register), which was in the Data Protection Act 1998 (the 1998 Act).

Although the 2018 Regulations come into effect on 25 May 2018, this doesn’t mean everyone now has to pay the new fee. Controllers who have a current registration (or notification) under the 1998 Act do not have to pay the new fee until that registration has expired.

Security

At a glance

Checklists

☐ We undertake an analysis of the risks presented by our processing, and use this to assess the appropriate level of security we need to put in place.

☐ When deciding what measures to implement, we take account of the state of the art and costs of implementation.

☐ We have an information security policy (or equivalent) and take steps to make sure the policy is implemented.

☐ Where necessary, we have additional policies and ensure that controls are in place to enforce them.

☐ We make sure that we regularly review our information security policies and measures and, where necessary, improve them.

☐ We have put in place basic technical controls such as those specified by established frameworks like Cyber Essentials.

☐ We understand that we may also need to put other technical measures in place depending on our circumstances and the type of personal data we process.

☐ We use encryption and/or pseudonymisation where it is appropriate to do so.

☐ We understand the requirements of confidentiality, integrity and availability for the personal data we process.

☐ We make sure that we can restore access to personal data in the event of any incidents, such as by establishing an appropriate backup process.

☐ We conduct regular testing and reviews of our measures to ensure they remain effective, and act on the results of those tests where they highlight areas for improvement.

☐ Where appropriate, we implement measures that adhere to an approved code of conduct or certification mechanism.

☐ We ensure that any data processor we use also implements appropriate technical and organisational measures.

In brief

What’s new?

The GDPR requires you to process personal data securely. This is not a new data protection obligation. It replaces and mirrors the previous requirement to have ‘appropriate technical and organisational measures’ under the Data Protection Act 1998 (the 1998 Act).

However, the GDPR provides more specifics about what you have to do about the security of your processing and how you should assess your information risk and put appropriate security measures in place. Whilst these are broadly equivalent to what was considered good and best practice under the 1998 Act, they are now a legal requirement.

What does the GDPR say about security?

Article 5(1)(f) of the GDPR concerns the ‘integrity and confidentiality’ of personal data. It says that personal data shall be:

'Processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures'

You can refer to this as the GDPR’s ‘security principle’. It concerns the broad concept of information security.

This means that you must have appropriate security to prevent the personal data you hold being accidentally or deliberately compromised. You should remember that while information security is sometimes considered as cybersecurity (the protection of your networks and information systems from attack), it also covers other things like physical and organisational security measures.

You need to consider the security principle alongside Article 32 of the GDPR, which provides more specifics on the security of your processing. Article 32(1) states:

‘Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk’

 Why should we worry about information security?

Poor information security leaves your systems and services at risk and may cause real harm and distress to individuals – lives may even be endangered in some extreme cases.

Some examples of the harm caused by the loss or abuse of personal data include:

Although these consequences do not always happen, you should recognise that individuals are still entitled to be protected from less serious kinds of harm, for example embarrassment or inconvenience.

Information security is important, not only because it is itself a legal requirement, but also because it can support good data governance and help you demonstrate your compliance with other aspects of the GDPR.

The ICO is also required to consider the technical and organisational measures you had in place when considering an administrative fine.

What do our security measures need to protect?

The security principle goes beyond the way you store or transmit information. Every aspect of your processing of personal data is covered, not just cybersecurity. This means the security measures you put in place should seek to ensure that:

These are known as ‘confidentiality, integrity and availability’ and under the GDPR, they form part of your obligations.

What level of security is required?

The GDPR does not define the security measures that you should have in place. It requires you to have a level of security that is ‘appropriate’ to the risks presented by your processing. You need to consider this in relation to the state of the art and costs of implementation, as well as the nature, scope, context and purpose of your processing.

This reflects both the GDPR’s risk-based approach, and that there is no ‘one size fits all’ solution to information security. It means that what’s ‘appropriate’ for you will depend on your own circumstances, the processing you’re doing, and the risks it presents to your organisation.

So, before deciding what measures are appropriate, you need to assess your information risk. You should review the personal data you hold and the way you use it in order to assess how valuable, sensitive or confidential it is – as well as the damage or distress that may be caused if the data was compromised. You should also take account of factors such as:

We cannot provide a complete guide to all aspects of security in all circumstances for all organisations, but this guidance is intended to identify the main points for you to consider.

What organisational measures do we need to consider?

Carrying out an information risk assessment is one example of an organisational measure, but you will need to take other measures as well. You should aim to build a culture of security awareness within your organisation. You should identify a person with day-to-day responsibility for information security within your organisation and make sure this person has the appropriate resources and authority to do their job effectively.

Example

The Chief Executive of a medium-sized organisation asks the Director of Resources to ensure that appropriate security measures are in place, and that regular reports are made to the board.

The Resources Department takes responsibility for designing and implementing the organisation’s security policy, writing procedures for staff to follow, organising staff training, checking whether security measures are actually being adhered to and investigating security incidents.

Clear accountability for security will ensure that you do not overlook these issues, and that your overall security posture does not become flawed or out of date.

Although an information security policy is an example of an appropriate organisational measure, you may not need a ‘formal’ policy document or an associated set of policies in specific areas. It depends on your size and the amount and nature of the personal data you process, and the way you use that data. However, having a policy does enable you to demonstrate how you are taking steps to comply with the security principle.

Whether or not you have such a policy, you still need to consider security and other related matters such as:

What technical measures do we need to consider?

Technical measures are sometimes thought of as the protection of personal data held in computers and networks. Whilst these are of obvious importance, many security incidents can be due to the theft or loss of equipment, the abandonment of old computers or hard-copy records being lost, stolen or incorrectly disposed of. Technical measures therefore include both physical and computer or IT security.

When considering physical security, you should look at factors such as:

In the IT context, technical measures may sometimes be referred to as ‘cybersecurity’. This is a complex technical area that is constantly evolving, with new threats and vulnerabilities always emerging. It may therefore be sensible to assume that your systems are vulnerable and take steps to protect them.

When considering cybersecurity, you should look at factors such as:

Depending on the sophistication of your systems, your usage requirements and the technical expertise of your staff, you may need to obtain specialist information security advice that goes beyond the scope of this guidance. However, it’s also the case that you may not need a great deal of time and resources to secure your systems and the personal data they process.

Whatever you do, you should remember the following:

A good starting point is to make sure that you’re in line with the requirements of Cyber Essentials – a government scheme that includes a set of basic technical controls you can put in place relatively easily.

You should however be aware that you may have to go beyond these requirements, depending on your processing activities. Cyber Essentials is only intended to provide a ‘base’ set of controls, and won’t address the circumstances of every organisation or the risks posed by every processing operation.

A list of helpful sources of information about cybersecurity is provided below.

Other resources

The Cyber Essentials scheme

 

In more detail – ICO guidance

Under the 1998 Act, the ICO published a number of more detailed guidance pieces on different aspects of IT security. We will be updating each of these to reflect the GDPR’s requirements in due course. However, until that time they may still provide you with assistance or things to consider.

What if we operate in a sector that has its own security requirements?

Some industries have specific security requirements or require you to adhere to certain frameworks or standards. These may be set collectively, for example by industry bodies or trade associations, or could be set by other regulators. If you operate in these sectors, you need to be aware of their requirements, particularly if specific technical measures are specified.

Although following these requirements will not necessarily equate to compliance with the GDPR’s security principle, the ICO will nevertheless consider these carefully in any considerations of regulatory action. It can be the case that they specify certain measures that you should have, and that those measures contribute to your overall security posture.

Example

If you are processing payment card data, you are obliged to comply with the Payment Card Industry Data Security Standard. The PCI-DSS outlines a number of specific technical and organisational measures that the payment card industry considers applicable whenever such data is being processed.

Although compliance with the PCI-DSS is not necessarily equivalent to compliance with the GDPR’s security principle, if you process card data and suffer a personal data breach, the ICO will consider the extent to which you have put in place measures that PCI-DSS requires particularly if the breach related to a lack of a particular control or process mandated by the standard.

What do we do when a data processor is involved?

If one or more organisations process personal data on your behalf, then these are data processors under the GDPR. This can have the potential to cause security problems – as a data controller you are responsible for ensuring compliance with the GDPR and this includes what the processor does with the data. However, in addition to this, the GDPR’s security requirements also apply to any processor you use.

This means that:

At the same time, your processor can assist you in ensuring compliance with your security obligations. For example, if you lack the resource or technical expertise to implement certain measures, engaging a processor that has these resources can assist you in making sure personal data is processed securely, provided that your contractual arrangements are appropriate.

Should we use pseudonymisation and encryption?

Pseudonymisation and encryption are specified in the GDPR as two examples of measures that may be appropriate for you to implement. This does not mean that you are obliged to use these measures. It depends on the nature, scope, context and purposes of your processing, and the risks posed to individuals.

However, there are a wide range of solutions that allow you to implement both without great cost or difficulty. For example, for a number of years the ICO has considered encryption to be an appropriate technical measure given its widespread availability and relatively low cost of implementation. This position has not altered due to the GDPR — if you are storing personal data, or transmitting it over the internet, we recommend that you use encryption and have a suitable policy in place, taking account of the residual risks involved.

When considering what to put in place, you should undertake a risk analysis and document your findings.

In more detail – ICO guidance

We have published detailed guidance on encryption under the 1998 Act. Much of this guidance still applies, however we are also working to update it to reflect the GDPR.

What are ‘confidentiality, integrity, availability’ and ‘resilience’?

Collectively known as the ‘CIA triad’, confidentiality, integrity and availability are the three key elements of information security. If any of the three elements is compromised, then there can be serious consequences, both for you as a data controller, and for the individuals whose data you process.

The information security measures you implement should seek to guarantee all three both for the systems themselves and any data they process.

The CIA triad has existed for a number of years and its concepts are well-known to security professionals.

You are also required to have the ability to ensure the ‘resilience’ of your processing systems and services. Resilience refers to:

This refers to things like business continuity plans, disaster recovery, and cyber resilience. Again, there is a wide range of solutions available here, and what is appropriate for you depends on your circumstances. 

What are the requirements for restoring availability and access to personal data?

You must have the ability to restore the availability and access to personal data in the event of a physical or technical incident in a ‘timely manner’.

The GDPR does not define what a ‘timely manner’ should be. This therefore depends on:

The key point is that you have taken this into account during your information risk assessment and selection of security measures. For example, by ensuring that you have an appropriate backup process in place you will have some level of assurance that if your systems do suffer a physical or technical incident you can restore them, and therefore the personal data they hold, as soon as reasonably possible.

Example

An organisation takes regular backups of its systems and the personal data held within them. It follows the well-known ‘3-2-1’ backup strategy: three copies, with two stored on different devices and one stored off-site.

The organisation is targeted by a ransomware attack that results in the data being encrypted. This means that it is no longer able to access the personal data it holds.

Depending on the nature of the organisation and the data it processes, this lack of availability can have significant consequences on individuals – and would therefore be a personal data breach under the GDPR.

The ransomware has spread throughout the organisation’s systems, meaning that two of the backups are also unavailable. However, the third backup, being stored off-site, allows the organisation to restore its systems in a timely manner. There may still be a loss of personal data depending on when the off-site backup was taken, but having the ability to restore the systems means that whilst there will be some disruption to the service, the organisation are nevertheless able to comply with this requirement of the GDPR.

Are we required to ensure our security measures are effective?

Yes, the GDPR specifically requires you to have a process for regularly testing, assessing and evaluating the effectiveness of any measures you put in place. What these tests look like, and how regularly you do them, will depend on your own circumstances. However, it’s important to note that the requirement in the GDPR concerns your measures in their entirety, therefore whatever ‘scope’ you choose for this testing should be appropriate to what you are doing, how you are doing it, and the data that you are processing.

Technically, you can undertake this through a number of techniques, such as vulnerability scanning and penetration testing. These are essentially ‘stress tests’ of your network and information systems, which are designed to reveal areas of potential risk and things that you can improve.

In some industries, you are required to undertake tests of security measures on a regular basis. The GDPR now makes this an obligation for all organisations. Importantly, it does not specify the type of testing, nor how regularly you should undertake it. It depends on your organisation and the personal data you are processing.

You can undertake testing internally or externally. In some cases it is recommended that both take place.

Whatever form of testing you undertake, you should document the results and make sure that you act upon any recommendations, or have a valid reason for not doing so, and implement appropriate safeguards. This is particularly important if your testing reveals potential critical flaws that could result in a personal data breach.

 What about codes of conduct and certification?

If your security measures include a product or service that adheres to a GDPR code of conduct (once any have been approved) or certification (once any have been issued), you may be able to use this as an element to demonstrate your compliance with the security principle. It is important that you check carefully that the code or certification is appropriately issued in accordance with the GDPR.

In more detail - European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

The EDPB will be producing specific guidance on certification in the coming months.

The EDPB published for consultation draft guidelines on certification and identifying certification criteria in accordance with Articles 42 and 43 of the Regulation 2016/679 on 30 May 2018. The consultation closed on 12 July 2018.

The EDPB are also drafting guidelines on certification as an appropriate safeguard for international transfers of personal data (Article 46(2)(f).

What about our staff?

The GDPR requires you to ensure that anyone acting under your authority with access to personal data does not process that data unless you have instructed them to do so. It is therefore vital that your staff understand the importance of protecting personal data, are familiar with your security policy and put its procedures into practice.

You should provide appropriate initial and refresher training, including:

Your staff training will only be effective if the individuals delivering it are themselves reliable and knowledgeable.

Other resources

The NCSC has detailed technical guidance in a number of areas that will be relevant to you whenever you process personal data. Some examples include:

The government has produced relevant guidance on cybersecurity:

Technical guidance produced by the European Union Agency for Network and Information Security (ENISA) may also assist you:

 

In more detail – ICO guidance

The ICO and NCSC have jointly produced guidance on security outcomes.

Encryption

At a glance 

Checklists

Encryption

 We understand that encryption can be an appropriate technical measure to ensure that we process personal data securely.

 We have an appropriate policy in place governing our use of encryption.

 We ensure that we educate our staff on the use and importance of encryption.

 We have assessed the nature and scope of our processing activities and have implemented encryption solution(s) to protect the personal data we store and/or transmit.

 We understand the residual risks that remain, even after we have implemented our encryption solution(s).

 Our encryption solution(s) meet current standards such as FIPS 140-2 and FIPS 197.

 We ensure that we keep our encryption solution(s) under review in the light of technological developments.

 We have considered the types of processing we undertake, and whether encryption can be used in this processing.

In brief 

What's new

 What is encryption?

Encryption and data storage

Encryption and data transfer

What types of encryption are there?

How should we implement encryption?

Further reading

We have published detailed guidance on encryption.

 

Passwords in online services

At a glance

In brief

What is required under the GDPR?

The GDPR does not say anything specific about passwords. However, Article 5(1)(f) states that personal data shall be:

‘Processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.’

This is the GDPR’s ‘integrity and confidentiality’ principle, or, more simply, the ‘security’ principle. So, although there are no provisions on passwords, the security principle requires you to take appropriate technical and organisational measures to prevent unauthorised processing of personal data you hold.

This means that when you are considering a password setup to protect access to a system that processes personal data, that setup must be ‘appropriate’.

What are the other considerations?

Although the GDPR does not define what is ‘appropriate’, it does provide further considerations in Article 32, ‘security of processing’:

‘Taking into account the state of the art, the costs of implementation, and the nature, scope, context and purposes of processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, the controller and the processor shall implement appropriate technical and organisational measures to ensure a level of security appropriate to the risk.’

This means that when considering any measures, you can consider the state of technological development and the cost of implementation – but the measures themselves must ensure a level of security appropriate to the nature of the data being protected and the harm that could be caused by unauthorised access.

This means that you cannot simply set up a password system and then forget about it – there must be a periodic review process.

You must also ensure that you are aware of the state of technological development in this area and must ensure that your processes and technologies are robust against evolving threats. For example, advances in processing power can reduce the effectiveness of cryptography, particular design choices can become outdated, and so on.

You must also consider whether there might be better alternatives to passwords that can be used to secure a system.

Article 25 of the GDPR also requires you to adopt a data protection by design approach. This means that whenever you develop systems and services that are involved in your processing, you should ensure that you take account of data protection considerations at the initial design stage and throughout the lifecycle. This applies to any password system you intend to use.

At the same time, provided you properly implement a password system, it can be an element that can be used to demonstrate compliance with your obligations under data protection by design.

In more detail – ICO guidance

Read our sections on security and data protection by design in the Guide to the GDPR.

Choosing the right authentication scheme

One of the biggest challenges you face when dealing with personal data online is ensuring that such data can be accessed only by those with the correct permissions - in other words, authenticating, and authorising, the individual who is trying to gain access.

It is commonly accepted that there are three main ways of authenticating people to a system – checking for:

Of these, the most commonly used is something the individual knows. In most cases something they know is taken to be a password.

Passwords remain the most popular way that individuals authenticate to online services. The reason for this is that a password is generally the simplest method to deploy and the most familiar for individuals. Despite this, passwords carry well-known risks. The biggest risk is that people have generally seen passwords as a mathematical problem that can be solved by increasing complexity rules. This fails to take into account natural human behaviour which is to make passwords more easily memorable, regardless of the cost to security.

A rigid focus on password strength rules with no consideration of the usual behaviour of people choosing passwords means that you can make inappropriate choices in setting up and maintaining of your authentication system. This could place the wider security of your systems or your users at risk.

Are passwords the best choice?

The success of using a password to properly authenticate a user of your service relies on the fact that their password remains a shared secret between you and them. When a password is shared amongst users or can be easily guessed by an attacker it can become extremely difficult to tell the difference between an authorised user and an imposter with stolen or guessed credentials. 

The proliferation of online services requiring individuals to create an account has meant that some have become overwhelmed with access credentials and defaulted to reusing a short and memorable password (often coupled with the same email address as a username) across multiple websites. The risk here is that if one service suffers a personal data breach and access credentials are compromised, these can be tested against other online services to gain access – a technique known as ‘credential stuffing’.

Example

In 2012, the social networking site LinkedIn was hacked. It was thought at the time that passwords for around 6.5 million user accounts were stolen by cybercriminals. However, in May 2016, following the advertisement for sale on the dark web of 165 million user accounts and passwords, LinkedIn confirmed that the 2012 attack had actually resulted in the theft of email addresses and hashed passwords of approximately 165 million users.

The vast majority of the passwords were subsequently cracked and posted online less than a day after the further distribution, largely due to the use of SHA1 without a salt as the hashing algorithm. Due to the reuse of passwords across online services, a number of subsequent account takeovers at other services were attributed to the LinkedIn hack.

Before designing and implementing a new password system, you should consider whether it is necessary to do so, or whether there is a better alternative that can provide secure access.

One common alternative to designing and implementing your own solution is to utilise a single sign on (SSO) system. While this has its advantages (not least a reduction in the number of passwords that a user has to remember) you must ensure that you are happy with the level of security that is offered by that system. You must also consider what will happen if the SSO is compromised, as this will most likely also result in your user’s accounts being compromised.

What makes a secure and useable password system?

A good password system is one that provides you with sufficient assurance that the individual attempting to log in is the user they claim to be. In practice, this means a good password system should protect against two types of attack:

Your system should also make it as easy as possible for users to create secure and unique passwords that they can remember or store easily. It should not place an undue burden on individuals to make sure that their account is secure. Putting such barriers in place can result in users making less secure password choices.

The advice provided in this guidance is a good starting point for most systems where personal data is being protected. It will be updated as necessary, but you should consider whether you need to apply a higher level of security given your particular circumstances.

You should ensure that you stay up to date with the current capabilities of attackers who might try to compromise password systems. You should also consider advice from other sources, such as the National Cyber Security Centre (NCSC) and GetSafeOnline.

Further reading

Guidance on passwords from the NCSC:

Guidance on passwords from GetSafeOnline:

What should I consider when implementing a password system?

How should we store passwords?

Do not store passwords in plaintext - make sure you use a suitable hashing algorithm, or another mechanism that offers an equivalent level of protection against an attacker deriving the original password.

Well-known hashing algorithms such as MD5 and SHA1 are not suitable for hashing passwords. Both algorithms have known security weaknesses which can be exploited, and you should not use these for password protection in any circumstances. You should also consider avoiding other fast algorithms. Use a hashing algorithm that has been specifically designed for passwords, such as bcrypt, scrypt or PBKDF2, with a salt of appropriate length.

It is important that you review the hashing algorithms you use, as over time they can become outdated. Guidance on algorithms is available from a number of organisations such as the National Institute of Standards in Technology (NIST) and the European Union Agency for Network and Information Security (ENISA). You should also be aware of any sector-specific guidelines that are available and may be applicable to you, eg from the European Payments Council.

You may also need to make sure that you can replace any algorithm that becomes obsolete.

You should also ensure that the architecture around your password system does not allow for any inadvertent leaking of passwords in plaintext.

Example

In 2018, Twitter and GitHub discovered that errors in their logging systems had led to plaintext passwords for users being stored in log files. Although the log files were not exposed to anyone outside of the organisations, both Twitter and GitHub recommended or required that users changed their passwords. 

Further reading

Information on the status of a number of hashing functions can be found in NIST Special Publication 800-131A Revision 1 – Transitions: Recommendations for transitioning the use of cryptographic algorithms and key lengths (2015)

ENISA’s 2014 ‘Algorithms, key size and parameters’ report provides further information on the status of cryptographic hash functions. You should note that although SHA1 is listed as acceptable for legacy use, this was only until the SHA3 hashing function was finalised, which took place in 2015. SHA1 is now regarded as unsuitable for use.

The European Payments Council’s guidance on the use of cryptographic algorithms provides additional information if your organisation is part of this sector.

How should our users enter their passwords?

You should ensure that your login pages are protected with HTTPS, or some other equivalent level of protection. Failure to do so will mean that anyone who is in a position to intercept network traffic can obtain passwords and may be able to carry out replay attacks. You should also consider that many browsers now mark pages that require secure input (such as login pages) as insecure if they are delivered over HTTP.

Further reading – ICO guidance

Read our guidance on encryption for more information about secure data transfer and HTTPS.

 

Make sure that password hashing is carried out server-side, rather than client-side. Hashing client-side will remove the protection afforded by hashing in the first place, unless other mitigations are put in place. This is a complicated area with a number of factors to consider. At the most basic level, if you are hashing client-side and an attacker obtains your password database, then those hashes can be presented directly to the server for a successful login.

Also, you should not prevent users from pasting passwords into the password field. Preventing pasting is often seen as a security measure, but at the same time doing so can impede people from using password managers effectively. The NCSC’s position on password pasting is the same, as expressed in a blog post discussing this issue in much more detail. Any attacks that are facilitated by allowing pasting can be defended against with proper rate limiting (see for more details on rate limiting).

Further reading

Read the NCSC’s ‘Let them paste passwords’ blog post for more information on why you should allow your users to paste passwords into password fields.

What requirements should we set for user passwords?

There are three general requirements for any password system that you will need to consider:

Example

A password blacklist could be a feature of the software you use. Other lists are available online, e.g. SecLists and haveibeenpwned's password list.

It is also possible to find easy implementations, such as NIST Bad Passwords, which uses SecLists.

Other than the three requirements listed above, do not set restrictions on how users should create a password. Current research (see ‘Further reading’ below) indicates that doing so will cause people to reuse passwords across accounts, to create weak passwords with obvious substitutions or to forget their passwords. All this places unnecessary stress on your reset process.

Properly set up and configured password strength meters can be a good way to easily communicate the requirements listed above to your users, and research has shown that good meters can assist users in choosing strong passwords. If you decide to use one, make sure it properly reflects what constitutes a strong or weak password.

Further reading

Microsoft’s password guidance contains advice on passwords in the context of several Microsoft platforms. It includes guidance for IT administrators as well as users, and details a number of common password attacks and highlights a number of issues including the risks of placing restrictions on how users create passwords.

Advice from the Federal Trade Commission (FTC)  also discusses these issues. 

For more information on password strength meters, read this analysis from Sophos as well as the significant amount of research from Carnegie Mellon University.

 

Finally, remind your users that they should not reuse passwords from other sites. In most circumstances you should not have any idea what your user’s passwords are. However, some companies will actively track compromised credentials that are traded on the dark web and will check these credentials against the hashes they hold on their systems to see if there is a match. If you decide that this is something you want to do you need to carefully consider the potential legal implications of obtaining such lists, and you will need to explain very clearly how you use that data to your users (especially where the use of such data has led to a password reset or an account lockout).

What should we do about password expirations and resets?

You should only set password expirations if they are absolutely necessary for your particular circumstances. Regular expiry often causes people to change a single strong password for a series of weak passwords. As a general rule, get your users to create a strong initial password and only change them if there are pressing reasons, such as a personal data breach.

When deploying a password reset process you should ensure that it is secure. Do not send passwords over email, even if they are temporary – use one time links, and ensure that you do not leak the credentials in any referral headers. You should also not be in a position where a member of your staff is able to ‘read out’ a user’s password to them, eg over the phone in a service call—this indicates that you are storing passwords in plaintext, which is, as described above, not appropriate. If you require a password to validate a user over the phone, set a separate phone password for the account.

You should also time limit any password reset credentials. The majority of users will probably reset their password immediately, but set a limit that fits your observed user behaviour.

What defences can we put in place against attacks?

Ensure that you are rate limiting or ‘throttling’ the number and frequency of incorrect login attempts. The precise number of attempts and the consequence of exceeding these limits will be for you to decide based on the specific circumstances of your organisation, but limiting to a certain number per hour, day and month is a good idea. This will help to deter both bulk attackers and people targeting individual accounts.

Example

NIST guidance recommends that accounts with internet access should be limited to 100 consecutive failed attempts on a single account within a 30 day period, unless otherwise specified in the system being deployed.

There are additional considerations when implementing your rate limits:

You should also consider whether other methods of preventing attacks might be appropriate. Examples of these methods could include, but are not limited to:

What else do we need to consider?

You will need to address how your system will respond to an attacker who has legitimate credentials for a user, or for multiple users. There is a distinct possibility that you will encounter this scenario given that both password reuse and website breaches are relatively common occurrences.

Techniques for recognising common user behaviour are becoming more advanced, and you could use these to develop a risk-based approach to verifying an authentication attempt. For example, if a user logs in from a new device or IP address you might consider requesting a second authentication factor and informing the user by another contact method of the login attempt. It is however important to remember that collecting additional data from users in order to defend against authentication attacks could itself constitute processing personal data and should operate in compliance with the GDPR. This does not mean you cannot process this data, but you must ensure that you have considered the data protection implications of doing so.

You should consider providing your users with the facility to review a list of unsuccessful login attempts. This will allow people who might be specifically targeted to check for potential attacks manually. However, this will only be useful if you pay attention to reports from individuals that their accounts are being attacked.

You should also consider implementing two-factor or multifactor authentication wherever it is possible to do so - to take the most common example, a password and a one-time token generator. This will be more important where the personal data that can be accessed is of a sensitive nature, or could cause significant harm if it were compromised.

Other examples of a second factor that could be used include biometrics (fingerprints being the most common and easy to implement), smart cards or U2F keys and devices. You will however need to ensure that any processing of biometric data for the purposes of uniquely identifying an individual is done in accordance with the GDPR’s requirements for special category data, and/or an appropriate processing condition in Schedule 1 of the Data Protection Act 2018.

In more detail – ICO guidance

Read Protecting personal data in online services: learning from the mistakes of others (PDF) for more information.

For more information on special category data, read the section on key definitions in the Guide to the GDPR.

 

Further reading

Additional guidance on digital identities, hashing functions and algorithms and passwords in general includes:

 

Personal data breaches

At a glance 

Checklists

Preparing for a personal data breach

We know how to recognise a personal data breach.

We understand that a personal data breach isn’t only about loss or theft of personal data.

 We have prepared a response plan for addressing any personal data breaches that occur.

 We have allocated responsibility for managing breaches to a dedicated person or team.

 Our staff know how to escalate a security incident to the appropriate person or team in our organisation to determine whether a breach has occurred.

 

Responding to a personal data breach

 We have in place a process to assess the likely risk to individuals as a result of a breach.

 We know who is the relevant supervisory authority for our processing activities.

 We have a process to notify the ICO of a breach within 72 hours of becoming aware of it, even if we do not have all the details yet.

 We know what information we must give the ICO about a breach.

 We have a process to inform affected individuals about a breach when it is likely to result in a high risk to their rights and freedoms.

 We know we must inform affected individuals without undue delay.

 We know what information about a breach we must provide to individuals, and that we should provide advice to help them protect themselves from its effects.

 We document all breaches, even if they don’t all need to be reported.

In brief

What is a personal data breach?

A personal data breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data. This includes breaches that are the result of both accidental and deliberate causes. It also means that a breach is more than just about losing personal data.

Example

Personal data breaches can include:

  • access by an unauthorised third party;
  • deliberate or accidental action (or inaction) by a controller or processor;
  • sending personal data to an incorrect recipient;
  • computing devices containing personal data being lost or stolen; 
  • alteration of personal data without permission; and
  • loss of availability of personal data.

A personal data breach can be broadly defined as a security incident that has affected the confidentiality, integrity or availability of personal data. In short, there will be a personal data breach whenever any personal data is lost, destroyed, corrupted or disclosed; if someone accesses the data or passes it on without proper authorisation; or if the data is made unavailable, for example, when it has been encrypted by ransomware, or accidentally lost or destroyed.

Recital 87 of the GDPR makes clear that when a security incident takes place, you should quickly establish whether a personal data breach has occurred and, if so, promptly take steps to address it, including telling the ICO if required.

What breaches do we need to notify the ICO about?

When a personal data breach has occurred, you need to establish the likelihood and severity of the resulting risk to people’s rights and freedoms. If it’s likely that there will be a risk then you must notify the ICO; if it’s unlikely then you don’t have to report it. However, if you decide you don’t need to report the breach, you need to be able to justify this decision, so you should document it.

In assessing risk to rights and freedoms, it’s important to focus on the potential negative consequences for individuals. Recital 85 of the GDPR explains that:

“A personal data breach may, if not addressed in an appropriate and timely manner, result in physical, material or non-material damage to natural persons such as loss of control over their personal data or limitation of their rights, discrimination, identity theft or fraud, financial loss, unauthorised reversal of pseudonymisation, damage to reputation, loss of confidentiality of personal data protected by professional secrecy or any other significant economic or social disadvantage to the natural person concerned.”

This means that a breach can have a range of adverse effects on individuals, which include emotional distress, and physical and material damage. Some personal data breaches will not lead to risks beyond possible inconvenience to those who need the data to do their job. Other breaches can significantly affect individuals whose personal data has been compromised. You need to assess this case by case, looking at all relevant factors.

Example

The theft of a customer database, the data of which may be used to commit identity fraud, would need to be notified, given the impact this is likely to have on those individuals who could suffer financial loss or other consequences. On the other hand, you would not normally need to notify the ICO, for example, about the loss or inappropriate alteration of a staff telephone list.

So, on becoming aware of a breach, you should try to contain it and assess the potential adverse consequences for individuals, based on how serious or substantial these are, and how likely they are to happen.

For more details about assessing risk, please see section IV of the Article 29 Working Party (WP29) guidelines on personal data breach notification. WP29 has been replaced by the European Data Protection Board (EDPB) which has endorsed these guidelines.

What role do processors have?

If your organisation uses a data processor, and this processor suffers a breach, then under Article 33(2) it must inform you without undue delay as soon as it becomes aware.

Example

Your organisation (the controller) contracts an IT services firm (the processor) to archive and store customer records. The IT firm detects an attack on its network that results in personal data about its clients being unlawfully accessed. As this is a personal data breach, the IT firm promptly notifies you that the breach has taken place. You in turn notify the ICO.

This requirement allows you to take steps to address the breach and meet your breach-reporting obligations under the GDPR. 

If you use a processor, the requirements on breach reporting should be detailed in the contract between you and your processor, as required under Article 28. For more details about contracts, please see our draft GDPR guidance on contracts and liabilities between controllers and processors.

How much time do we have to report a breach?

You must report a notifiable breach to the ICO without undue delay, but not later than 72 hours after becoming aware of it. If you take longer than this, you must give reasons for the delay.

Section II of the WP29 Guidelines on personal data breach notification gives more details of when a controller can be considered to have “become aware” of a breach.

What information must a breach notification to the supervisory authority contain?

When reporting a breach, the GDPR says you must provide:

What if we don’t have all the required information available yet?

The GDPR recognises that it will not always be possible to investigate a breach fully within 72 hours to understand exactly what has happened and what needs to be done to mitigate it. So Article 34(4) allows you to provide the required information in phases, as long as this is done without undue further delay.

However, we expect controllers to prioritise the investigation, give it adequate resources, and expedite it urgently. You must still notify us of the breach when you become aware of it, and submit further information as soon as possible. If you know you won’t be able to provide full details within 72 hours, it is a good idea to explain the delay to us and tell us when you expect to submit more information.

Example

You detect an intrusion into your network and become aware that files containing personal data have been accessed, but you don’t know how the attacker gained entry, to what extent that data was accessed, or whether the attacker also copied the data from your system.

You notify the ICO within 72 hours of becoming aware of the breach, explaining that you don’t yet have all the relevant details, but that you expect to have the results of your investigation within a few days. Once your investigation uncovers details about the incident, you give the ICO more information about the breach without delay.

How do we notify a breach to the ICO?

To notify the ICO of a personal data breach, please see our pages on reporting a breach.

Remember, in the case of a breach affecting individuals in different EU countries, the ICO may not be the lead supervisory authority. This means that as part of your breach response plan, you should establish which European data protection agency would be your lead supervisory authority for the processing activities that have been subject to the breach. For more guidance on determining who your lead authority is, please see the WP29 guidance on identifying your lead authority, which has been endorsed by the EDPB.

When do we need to tell individuals about a breach?

If a breach is likely to result in a high risk to the rights and freedoms of individuals, the GDPR says you must inform those concerned directly and without undue delay. In other words, this should take place as soon as possible.

A ‘high risk’ means the threshold for informing individuals is higher than for notifying the ICO. Again, you will need to assess both the severity of the potential or actual impact on individuals as a result of a breach and the likelihood of this occurring. If the impact of the breach is more severe, the risk is higher; if the likelihood of the consequences is greater, then again the risk is higher. In such cases, you will need to promptly inform those affected, particularly if there is a need to mitigate an immediate risk of damage to them. One of the main reasons for informing individuals is to help them take steps to protect themselves from the effects of a breach.

Example

A hospital suffers a breach that results in an accidental disclosure of patient records. There is likely to be a significant impact on the affected individuals because of the sensitivity of the data and their confidential medical details becoming known to others. This is likely to result in a high risk to their rights and freedoms, so they would need to be informed about the breach.

A university experiences a breach when a member of staff accidentally deletes a record of alumni contact details. The details are later re-created from a backup. This is unlikely to result in a high risk to the rights and freedoms of those individuals. They don’t need to be informed about the breach.

If you decide not to notify individuals, you will still need to notify the ICO unless you can demonstrate that the breach is unlikely to result in a risk to rights and freedoms. You should also remember that the ICO has the power to compel you to inform affected individuals if we consider there is a high risk. In any event, you should document your decision-making process in line with the requirements of the accountability principle.

What information must we provide to individuals when telling them about a breach?

You need to describe, in clear and plain language, the nature of the personal data breach and, at least:

Does the GDPR require us to take any other steps in response to a breach?

You should ensure that you record all breaches, regardless of whether or not they need to be reported to the ICO.             

Article 33(5) requires you to document the facts relating to the breach, its effects and the remedial action taken. This is part of your overall obligation to comply with the accountability principle, and allows us to verify your organisation’s compliance with its notification duties under the GDPR.

As with any security incident, you should investigate whether or not the breach was a result of human error or a systemic issue and see how a recurrence can be prevented – whether this is through better processes, further training or other corrective steps.

What else should we take into account?

The following aren’t specific GDPR requirements, but you may need to take them into account when you’ve experienced a breach.  

It is important to be aware that you may have additional notification obligations under other laws if you experience a personal data breach. For example:

You may also need to consider notifying third parties such as the police, insurers, professional bodies, or bank or credit card companies who can help reduce the risk of financial loss to individuals.

The EDPR, which has replaced WP29, may issue guidelines, recommendations and best practice advice that may include further guidance on personal data breaches. You should look out for any such future guidance. Likewise, you should be aware of any recommendations issued under relevant codes of conduct or sector-specific requirements that your organisation may be subject to.

What happens if we fail to notify?

Failing to notify a breach when required to do so can result in a significant fine up to 10 million euros or 2 per cent of your global turnover. The fine can be combined the ICO’s other corrective powers under Article 58. So it’s important to make sure you have a robust breach-reporting process in place to ensure you detect and can notify a breach, on time; and to provide the necessary details.

In more detail - ICO guidance

We are also working to update existing Data Protection Act 1998 guidance to reflect GDPR provisions. In the meantime, our existing guidance on encryption and A practical guide to IT security: ideal for the small business are good starting points.

 

In more detail - European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state. It adopts guidelines for complying with the requirements of the GDPR.

WP29 published the following guidelines which have been endorsed by the EDPB:

 

International transfers

   At a glance 

In brief

What are the restrictions on international transfers?

The GDPR restricts the transfer of personal data to countries outside the EEA, or international organisations. These restrictions apply to all transfers, no matter the size of transfer or how often you carry them out.

In more detail - European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state and each EEA state. It adopts guidelines for complying with the requirements of the GDPR.

The EDPB is currently working on its guidance in relation to International Transfers, and we will update our guide as this is published.

Are we making a transfer of personal data outside the EEA?

1) Are we making a restricted transfer?

You are making a restricted transfer if:

Example

A UK company uses a centralised human resources service in the United States provided by its parent company. The UK company passes information about its employees to its parent company in connection with the HR service. This is a restricted transfer.

Example

A UK company sells holidays in Australia. It sends the personal data of customers who have bought the holidays to the hotels they have chosen in Australia in order to secure their bookings. This is a restricted transfer.

Transfer does not mean the same as transit. If personal data is just electronically routed through a non-EEA country but the transfer is actually from one EEA country to another EEA country, then it is not a restricted transfer.

Example

Personal data is transferred from a controller in France to a controller in Ireland (both countries in the EEA) via a server in Australia. There is no intention that the personal data will be accessed or manipulated while it is in Australia. Therefore the transfer is only to Ireland.

You are making a restricted transfer if you collect information about individuals on paper, which is not ordered or structured in any way, and you send this to a service company located outside of the EEA, to:

Example

A UK insurance broker sends a set of notes about individual customers to a company in a non-EEA country. These notes are handwritten and are not stored on computer or in any particular order. The non-EEA company adds the notes to a computer customer management system. This is a restricted transfer.

Putting personal data on to a website will often result in a restricted transfer. The restricted transfer takes place when someone outside the EEA accesses that personal data via the website.

If you load personal data onto a UK server which is then available through a website, and you plan or anticipate that the website may be accessed from outside the EEA, you should treat this as a restricted transfer.

2) Is it to a country outside the EEA?

The EEA countries consist of the EU member states and the EFTA States.

The EU member states are Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.

The EEA states are Iceland, Norway and Liechtenstein. The EEA Joint Committee has made a decision that the GDPR applies to those countries and transfers to those countries are not restricted.

Do we need to make a restricted transfer of personal data to outside the EEA?

Before making a restricted transfer you should consider whether you can achieve your aims without actually sending personal data.

If you make the data anonymous so that it is never possible to identify individuals (even when combined with other information which is available to receiver), it is not personal data. This means that the restrictions do not apply and you are free to transfer the anonymised data outside the EEA.

How do we make a restricted transfer in accordance with the GDPR?

You must work through the following questions, in order.

If by the last question, you are still unable to make the restricted transfer, then it will be in breach of the GDPR.

Has the EU Commission made an ‘adequacy decision’ about the country or international organisation?

If you are making a restricted transfer then you need to know whether it is covered by an EU Commission “adequacy decision”.

This decision is a finding by the Commission that the legal framework in place in that country, territory or sector provides ‘adequate’ protection for individuals’ rights and freedoms for their personal data.

Adequacy decisions made prior to GDPR, remain in force unless there is a further Commission decision which decides otherwise. The Commission plans to review these decisions at least once every four years.

If it is covered by an adequacy decision, you may go ahead with the restricted transfer. Of course, you must still comply with the rest of the GDPR.

All EU Commission adequacy decisions to date also cover restricted transfers made from EEA states. The EEA Joint Committee will need to make a formal decision to adopt any future EU Commission adequacy decisions, for them to cover restricted transfers from EEA states.

1) What ‘adequacy decisions’ have there been?

As at July 2018 the Commission has made a full finding of adequacy about the following countries and territories:

Andorra, Argentina, Guernsey, Isle of Man, Israel, Jersey, New Zealand, Switzerland and Uruguay.

The Commission has made partial findings of adequacy about Canada and the USA.

The Privacy Shield places requirements on US companies certified by the scheme to protect personal data and provides for redress mechanisms for individuals. US Government departments such as the Department of Commerce oversee certification under the scheme.

If you want to transfer personal data to a US organisation under the Privacy Shield, you need to:

We are expecting an adequacy decision for Japan soon.

You can view an up to date list of the countries which have an adequacy finding on the European Commission's data protection website. You should check back regularly for any changes.

2) What if there is no adequacy decision?

You should move on to the next section Is the transfer covered by appropriate safeguards? 

 

Other resources
See the Privacy Shield website for more information.

Is the restricted transfer covered by appropriate safeguards?

If there is no ‘adequacy decision’ about the country, territory or sector for your restricted transfer, you should then find out whether you can make the transfer subject to ‘appropriate safeguards’, which are listed in the GDPR.

These appropriate safeguards ensure that both you and the receiver of the transfer are legally required to protect individuals’ rights and freedoms for their personal data.

If it is covered by an appropriate safeguards, you may go ahead with the restricted transfer. Of course, you must still comply with the rest of the GDPR.

Each appropriate safeguard is set out below:

1. A legally binding and enforceable instrument between public authorities or bodies

You can make a restricted transfer if you are a public authority or body and you are transferring to another public authority or body, and you have both signed a contract or another legal instrument which is legally binding and enforceable. This contract or instrument must include enforceable rights and effective remedies for individuals whose personal data is transferred.

This is not an appropriate safeguard if either you or the receiver are a private body or an individual.

If you are a public authority or body which does not have the power to enter into legally binding and enforceable arrangements, you may consider an administrative arrangement which includes enforceable and effective individual rights.

2. Binding corporate rules

You can make a restricted transfer if both you and the receiver have signed up to a group document called binding corporate rules (BCRs).

BCRs are an internal code of conduct operating within a multinational group, which applies to restricted transfers of personal data from the group's EEA entities to non-EEA group entities.

This may be a corporate group or a group of undertakings or enterprises engaged in a joint economic activity, such as franchises or joint ventures.

You must submit BCRs for approval to an EEA supervisory authority in an EEA country where one of the companies is based. Usually this is where the EEA head office is located, but it does not need to be. The criteria for choosing the lead authority for BCRs is laid down in the “Working Document Setting Forth a Co-Operation Procedure for the approval of “Binding Corporate Rules” for controllers and processors under the GDPR” (see “In more detail” below).

One or two other supervisory authorities will be involved in the review and approval of BCRs (depending on how many EEA countries you are making restricted transfers from). These will be supervisory authorities where other companies signing up to those BCRs are located.

The concept of using BCRs to provide adequate safeguards for making restricted transfers was developed by the Article 29 Working Party in a series of working documents. These form a ‘toolkit’ for organisations. The documents, including application forms and guidance have all been revised and updated in line with GDPR (see “In more detail” below).

In more detail - European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state and each EEA state. It adopts guidelines for complying with the requirements of the GDPR.

WP29 adopted the following guidelines, which have been endorsed by the EDPB:

Table of elements and principles for controller BCRs (WP256)

Table of elements and principles for processor BCRs (WP257)

Co-Operation Procedure for the approval of “Binding Corporate Rules (WP263.01)

Application Form BCR -C (WP264)

Application Form BCR – P (WP265)

3. Standard data protection clauses adopted by the Commission

You can make a restricted transfer if you and the receiver have entered into a contract incorporating standard data protection clauses adopted by the Commission.

These are known as the ‘standard contractual clauses’ (sometimes as ‘model clauses’). There are four sets which the Commission adopted under the Directive. They must be entered into by the data exporter (based in the EEA) and the data importer (outside the EEA).

The clauses contain contractual obligations on the data exporter and the data importer, and rights for the individuals whose personal data is transferred. Individuals can directly enforce those rights against the data importer and the data exporter.

There are two sets of standard contractual clauses for restricted transfers between a controller and controller, and two sets between a controller and processor. The earlier set of clauses between a controller and processor can no longer be used for new contracts, and are only valid for contracts entered into prior to 2010.

The Commission plans to update the existing standard contractual clauses for the GDPR. Until then, you can still enter into contracts which include the Directive-based standard contractual clauses. Please keep checking the websites of the ICO and the Commission for further information.

Existing contracts incorporating standard contractual clauses can continue to be used for restricted transfers (even once the Commission has adopted GDPR standard contractual clauses).

If you are entering into a new contract, you must use the standard contractual clauses in their entirety and without amendment. You can include additional clauses on business related issues, provided that they do not contradict the standard contractual clauses. You can also add parties (i.e. additional data importers or exporters) provided they are also bound by the standard contractual clauses.

If you are making a restricted transfer from a controller to another controller, you can choose which set of clauses to use, depending on which best suits your business arrangements.

Example 

A family books a holiday in Australia with a UK travel company. The UK travel company sends details of the booking to the Australian hotel.

Each company is a separate controller, as it is processing the personal data for its own purposes and making its own decisions.

The contract between the UK travel company and the hotel should use controller to controller standard contractual clauses.

If you are making a restricted transfer from a controller to a processor, you also need to comply with the GDPR requirements about using processors.

In more detail

The Commission published the following standard contractual clauses: 

2001 controller to controller

2004 controller to controller

2010 controller to processor

4. Standard data protection clauses adopted by a supervisory authority and approved by the Commission.

You can make a restricted transfer from the UK if you enter into a contract incorporating standard data protection clauses adopted by the ICO.

However, neither the ICO nor any other EEA supervisory authority has yet adopted any standard data protection clauses.

They are likely to be similar to those adopted by the Commission (above), but will be first adopted by the supervisory authority and then approved by the Commission.

We will add more details about using this option in due course.

5. An approved code of conduct together with binding and enforceable commitments of the receiver outside the EEA

You can make a restricted transfer if the receiver has signed up to a code of conduct, which has been approved by a supervisory authority. The code of conduct must include appropriate safeguards to protect the rights of individuals whose personal data transferred, and which can be directly enforced.

The GDPR endorses the use of approved codes of conduct to demonstrate compliance with its requirements.

This option is newly introduced by the GDPR and no approved codes of conduct are yet in use. We will add more details about this option in due course.

In more detail - European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state and each EEA state. It adopts guidelines for complying with the requirements of the GDPR.

The EDPB is producing guidance on codes of conduct, in general and in relation to restricted transfers, which will be published in due course.


6. Certification under an approved certification mechanism together with binding and enforceable commitments of the
receiver outside the EEA

You can make a restricted transfer if the receiver has a certification, under a scheme approved by a supervisory authority. The certification scheme must include appropriate safeguards to protect the rights of individuals whose personal data transferred, and which can be directly enforced.

The GDPR also endorses the use of approved certification mechanisms to demonstrate compliance with its requirements.

This option is newly introduced by the GDPR and no approved certification schemes are yet in use. We will add more details about this option in due course.

In more detail - European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state and each EEA state. It adopts guidelines for complying with the requirements of the GDPR.

The EDPB is producing guidance on certification schemes, in general and in relation to restricted transfers, which will be published in due course.


7. Contractual clauses authorised by a supervisory authority

You can make a restricted transfer if you and the receiver have entered into a bespoke contract governing a specific restricted transfer which has been individually authorised by the supervisory authority of the country from which the personal data is being exported. If you are making a restricted transfer from the UK, the ICO will have had to have approved the contract.

At present the ICO is not authorising any such bespoke contracts, until guidance has been produced by the EDPB.

8. Administrative arrangements between public authorities or bodies which include enforceable and effective rights for the individuals whose personal data is transferred, and which have been authorised by a supervisory authority

You can make a restricted transfer if:

This is not an appropriate safeguard for restricted transfers between a public and private body.

This option is newly introduced by the GDPR and no approved administrative arrangements are yet in use. We will add more details about this option in due course.

In more detail - European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state and each EEA state. It adopts guidelines for complying with the requirements of the GDPR.

The EDPB is producing guidance on administrative arrangements, which will be published in due course.

What if the restricted transfer is not covered by appropriate safeguards?

If it the restricted transfer is not covered by appropriate safeguards, then you need to consider the next question: Is the restricted transfer covered by an exception?

Is the restricted transfer covered by an exception?

If you are making a restricted transfer that is not covered by an adequacy decision, nor an appropriate safeguard, then you can only make that transfer if it is covered by one of the ‘exceptions’ set out in Article 49 of the GDPR.

You should only use these as true ‘exceptions’ from the general rule that you should not make a restricted transfer unless it is covered by an adequacy decision or there are appropriate safeguards in place.

If it is covered by an exception, you may go ahead with the restricted transfer. Of course, you must still comply with the rest of the GDPR.

Each exception is set out below:

Exception 1. Has the individual given his or her explicit consent to the restricted transfer?

Please see the section on consent as to what is required for a valid explicit consent under the GDPR.

As a valid consent must be both specific and informed, you must provide the individual with precise details about the restricted transfer. You cannot obtain a valid consent for restricted transfers in general.

You should tell the individual:

Given the high threshold for a valid consent, and that the consent must be capable of being withdrawn, this may mean that using consent is not a feasible solution.

Exception 2. Do you have a contract with the individual? Is the restricted transfer necessary for you to perform that contract?

Are you about to enter into a contract with the individual? Is the restricted transfer necessary for you to take steps requested by the individual in order to enter into that contract?

This exception explicitly states that it can only be used for occasional restricted transfers. This means that the restricted transfer may happen more than once but not regularly. If you are regularly making restricted transfers, you should be putting in place an appropriate safeguard.

The transfer must also be necessary, which means that you cannot perform the core purpose of the contract or the core purpose of the steps needed to enter into the contract, without making the restricted transfer. It does not cover a transfer for you to use a cloud based IT system.

Example

A UK travel company offering bespoke travel arrangements may rely on this exception to send personal data to a hotel in Peru, provided that it does not regularly arrange for its customers to stay at that hotel. If it did, it should consider using an appropriate safeguard, such as the the standard contractual clauses.

It is only necessary to send limited personal data for this purpose, such as the name of the guest, the room required and the length of stay.

Example of necessary steps being taken at the individual’s request in order to enter into a contract: Before the package is confirmed (and the contract entered into), the individual wishes to reserve a room in the Peruvian hotel. The UK travel company has to send the Peruvian hotel the name of the customer in order to hold the room.

Public authorities cannot rely on this exception when exercising their public powers.

Exception 3. Do you have (or are you entering into) a contract with an individual which benefits another individual whose data is being transferred? Is that transfer necessary for you to either enter into that contract or perform that contract?

As set out in Exception 2, you may only use this exception for occasional transfers, and the transfer must be necessary for you to perform the core purposes of the contract or to enter into that contract.

You may rely on both Exceptions 2 and 3: Exception 2 for the individual entering into the contract and Exception 3 for other people benefiting from that contract, often family members.

Exceptions 2 and 3 are not identical. You cannot rely on Exception 3 for any restricted transfers needed for steps taken prior to entering in to the contract.

Public authorities cannot rely on this exception when exercising their public powers.

Example

Following the Exception 2 example, Exception 3 may apply if the customer is buying the travel package for themselves and their family. Once the customer has bought the package with the UK travel company, it may be necessary to send the names of the family members to Peruvian hotel in order to book the rooms. 

Exception 4: You need to make the restricted transfer for important reasons of public interest.

There must be an EU or UK law which states or implies that this type of transfer is allowed for important reasons of public interest, which may be in the spirit of reciprocity for international co-operation. For example an international agreement or convention (which the UK or EU has signed) that recognises certain objectives and provides for international co-operation (such as the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism).

This can be relied upon by both public and private entities.

If a request is made by a non-EEA authority, requesting a restrictive transfer under this exception, and there is an international agreement such as a mutual assistance treaty (MLAT), you should consider referring the request to the existing MLAT or agreement.

You should not rely on this exception for systematic transfers. Instead, you should consider one of the appropriate safeguards. You should only use it in specific situations, and each time you should satisfy yourself that the transfer is necessary for an important reason of public interest.

Exception 5: You need to make the restricted transfer to establish if you have a legal claim, to make a legal claim or to defend a legal claim.

This exception explicitly states that you can only use it for occasional transfers. This means that the transfer may happen more than once but not regularly. If you are regularly transferring personal data, you should put in place an appropriate safeguard.

The transfer must be necessary, so there must be a close connection between the need for the transfer and the relevant legal claim.

The claim must have a basis in law, and a formal legally defined process, but it is not just judicial or administrative procedures. This means that you can interpret what is a legal claim quite widely, to cover, for example:

You cannot rely on this exception if there is only the mere possibility that a legal claim or other formal proceedings may be brought in the future.

Public authorities can rely on this exception, in relation to the exercise of their powers.

Exception 6: You need to make the restricted transfer to protect the vital interests of an individual. He or she must be physically or legally incapable of giving consent.

This applies in a medical emergency where the transfer is needed in order to give the medical care required. The imminent risk of serious harm to the individual must outweigh any data protection concerns.

You cannot rely on this exception to carry out general medical research.

If the individual is physically and legally capable of giving consent, then you cannot rely on this exception.

For detail as to what is considered a ‘vital interest’ under the GDPR, please see the section on vital interests as a condition of processing special category data.

For detail as to what is ‘consent’ under the GDPR please see the section on consent.

Exception 7: You are making the restricted transfer from a public register.

The register must be created under UK or EU law and must be open to either:

For example, registers of companies, associations, criminal convictions, land registers or public vehicle registers. The whole of the register cannot be transferred, nor whole categories of personal data.

The transfer must comply with any general laws which apply to disclosures from the public register. If the register has been established at law and access is only given to those with a legitimate interest, part of that assessment must take into account the data protection rights of the individuals whose personal data is to be transferred. This may include consideration of the risk to that personal data by transferring it to a country with less protection.

This does not cover registers run by private companies, such as credit reference databases.

Exception 8: you are making a one-off restricted transfer and it is in your compelling legitimate interests.

If you cannot rely on any of the other exceptions, there is one final exception to consider. This exception should not be relied on lightly and never routinely as it is only for truly exceptional circumstances.

For this exception to apply to your restricted transfer:

  1. there must be no adequacy decision which applies.
  2. you are unable to use any of the other appropriate safeguards. You must give serious consideration to this, even if it would involve significant investment from you.
  3. none of the other exceptions apply. Again, you must give serious consideration to the other exceptions. It may be that you can obtain explicit consent with some effort or investment.
  4. your transfer must not be repetitive – that is it may happen more than once but not regularly.
  5. the personal data must only relate to a limited number of individuals. There is no absolute threshold for this. The number of individuals involved should be part of the balancing exercise you must undertake in para (g) below.
  6. The transfer must be necessary for your compelling legitimate interests. Please see the section of the guide on legitimate interests as a lawful basis for processing, but bearing mind that this exception requires a higher standard, as it must be a compelling legitimate interest. An example is a transfer of personal data to protect a company’s IT systems from serious immediate harm.
  7. On balance, your compelling legitimate interests outweigh the rights and freedoms of the individuals.
  8. You have made a full assessment of the circumstances surrounding the transfer and provided suitable safeguards to protect the personal data. Suitable safeguards might be strict confidentiality agreements, a requirement for data to be deleted soon after transfer, technical controls to prevent the use of the data for other purposes, or sending pseudonymised or encrypted data. This must be recorded in full in your documentation of your processing activities.
  9. You have informed the ICO of the transfer. We will ask to see full details of all the steps you have taken as set out above.
  10. You have informed the individual of the transfer and explained your compelling legitimate interest to them.

In more detail - European Data Protection Board

The European Data Protection Board (EDPB), which has replaced the Article 29 Working Party (WP29), includes representatives from the data protection authorities of each EU member state and each EEA state. It adopts guidelines for complying with the requirements of the GDPR.

The EDPB adopted Guidelines 2/2018 on derogations of Article 49 under Regulation 2016/679

Exemptions

  At a glance

Checklists

Exemptions

We consider whether we can rely on an exemption on a case-by-case basis.

Where appropriate, we carefully consider the extent to which the relevant GDPR requirements would be likely to prevent, seriously impair, or prejudice the achievement of our processing purposes.

We justify and document our reasons for relying on an exemption.

When an exemption does not apply (or no longer applies) to our processing of personal data, we comply with the GDPR’s requirements as normal.

In brief

What’s new under the GDPR and the Data Protection Act 2018?

Not much has changed. Most of the exemptions in the Data Protection Act 1998 (the 1998 Act) are included as exceptions built in to certain GDPR provisions or exemptions in the Data Protection Act 2018 (the DPA 2018).

The ‘domestic purposes’ exemption in the 1998 Act is not replicated. This is because the GDPR does not apply to personal data processed in the course of a purely personal or household activity, with no connection to a professional or commercial activity.

If you used to rely on certain exemptions under the 1998 Act, the things you are exempt from may have changed slightly under the GDPR and the DPA 2018. You should check what is covered by the exemptions in the DPA 2018 and ensure that your use of any of the exemptions is appropriate and compliant.

What are exemptions?

In some circumstances, the DPA 2018 provides an exemption from particular GDPR provisions. If an exemption applies, you may not have to comply with all the usual rights and obligations.

There are several different exemptions; these are detailed in Schedules 2-4 of the DPA 2018. They add to and complement a number of exceptions already built in to certain GDPR provisions.

This part of the Guide focuses on the exemptions in Schedules 2-4 of the DPA 2018. We give guidance on the exceptions built in to the GDPR in the parts of the Guide that relate to the relevant provisions.

The exemptions in the DPA 2018 can relieve you of some of your obligations for things such as:

Some exemptions apply to only one of the above, but others can exempt you from several things.

Some things are not exemptions. This is simply because they are not covered by the GDPR. Here are some examples:

How do exemptions work?

Whether or not you can rely on an exemption generally depends on your purposes for processing personal data.

Some exemptions apply simply because you have a particular purpose. But others only apply to the extent that complying with the GDPR would:

Exemptions should not routinely be relied upon or applied in a blanket fashion. You must consider each exemption on a case-by-case basis.

If an exemption does apply, sometimes you will be obliged to rely on it (for instance, if complying with GDPR would break another law), but sometimes you can choose whether or not to rely on it.

In line with the accountability principle, you should justify and document your reasons for relying on an exemption so you can demonstrate your compliance.

If you cannot identify an exemption that covers what you are doing with personal data, you must comply with the GDPR as normal.

What exemptions are available?

Crime, law and public protection

Regulation, parliament and the judiciary

Journalism, research and archiving

Health, social work, education and child abuse

Finance, management and negotiations

References and exams

Subject access requests – information about other people

Crime and taxation: general

There are two parts to this exemption. The first part can apply if you process personal data for the purposes of:

It exempts you from the GDPR’s provisions on:

But the exemption only applies to the extent that complying with these provisions would be likely to prejudice your purposes of processing. If this is not so, you must comply with the GDPR as normal.

Example

A bank conducts an investigation into suspected financial fraud. The bank wants to pass its investigation file, including the personal data of several customers, to the National Crime Agency (NCA) for further investigation. The bank’s investigation and proposed disclosure to the NCA are for the purposes of the prevention and detection of crime. The bank decides that, were it to inform the individuals in question about this processing of their personal data, this would be likely to prejudice the investigation because they might abscond or destroy evidence. So the bank relies on the crime and taxation exemption and, in this case, does not comply with the right to be informed.

The second part of this exemption applies when another controller obtains personal data processed for any of the purposes mentioned above for the purposes of discharging statutory functions. The controller that obtains the personal data is exempt from the GDPR provisions below to the same extent that the original controller was exempt:

Note that if you are a competent authority processing personal data for law enforcement purposes (e.g. the Police conducting a criminal investigation), your processing is subject to the rules of Part 3 of the DPA 2018. See our Guide to Law Enforcement Processing for information on how individual rights may be restricted when personal data is processed for law enforcement purposes by competent authorities.

Crime and taxation: risk assessment

This exemption can apply to personal data in a classification applied to an individual as part of a risk assessment system.

The risk assessment system must be operated by a government department, local authority, or another authority administering housing benefit, for the purposes of:

It exempts you from the GDPR’s provisions on:

But the exemption only applies to the extent that complying with these provisions would prevent the risk assessment system from operating effectively. If this is not so, you must comply with these provisions as normal.

Information required to be disclosed by law or in connection with legal proceedings

This exemption has three parts. The first part can apply if you are required by law to make personal data available to the public.

It exempts you from the GDPR’s provisions on:

But the exemption only applies to the extent that complying with these provisions would prevent you meeting your legal obligation to make personal data publicly available.

Example

The Registrar of Companies is legally obliged to maintain a public register of certain information about companies, including the names and (subject to certain restrictions) addresses of company directors. A director asks to exercise his right to erasure by having his name and address removed from the register. The request does not need to be complied with as it would prevent the Registrar meeting his legal obligation to make that information publicly available.

The second part of this exemption can apply if you are required by law, or court order, to disclose personal data to a third party. It exempts you from the same provisions as above, but only to the extent that complying with those provisions would prevent you disclosing the personal data.

Example

An employer receives a court order to hand over the personnel file of one of its employees to an insurance company for the assessment of a claim. Normally, the employer would not be able to disclose this information because doing so would be incompatible with the original purposes for collecting the data (contravening the purpose limitation principle). However, on this occasion the employer is exempt from the purpose limitation principle’s requirements because it would prevent the employer disclosing personal data that it must do by court order.

The third part of this exemption can apply if it is necessary for you to disclose personal data for the purposes of, or in connection with:

It exempts you from the same provisions as above, but only to the extent that complying with them would prevent you disclosing the personal data. If complying with these provisions would not prevent the disclosure, you cannot rely on the exemption.

Legal professional privilege

This exemption applies if you process personal data:

It exempts you from the GDPR’s provisions on:

Self incrimination

This exemption can apply if complying with the GDPR provisions below would reveal evidence that you have committed an offence.

It exempts you from the GDPR’s provisions on:

But the exemption only applies to the extent that complying with these provisions would expose you to proceedings for the offence.

This exemption does not apply to an offence under the DPA 2018 or an offence regarding false statements made otherwise than on oath.

But any information you do provide to an individual in response to a subject access request is not admissible against you in proceedings for an offence under the DPA 2018.

Disclosure prohibited or restricted by an enactment

Five separate exemptions apply to personal data that is prohibited or restricted from disclosure by an enactment.

Each of them exempts you from the GDPR’s provisions on:

But the exemptions only apply to personal data restricted or prohibited from disclosure by certain specific provisions of enactments covering:

If you think any of these exemptions might apply to your processing of personal data, see Schedule 4 of the DPA 2018 for full details of the enactments that are covered.

Immigration

There are two parts to this exemption. The first part can apply if you process personal data for the purposes of maintaining effective immigration control, including investigatory/detection work (the immigration purposes).

It exempts you from the GDPR’s provisions on:

But the exemption only applies to the extent that applying these provisions would be likely to prejudice processing for the immigration purposes. If not, the exemption does not apply.

The second part of this exemption applies when personal data processed by any controller is obtained and processed by another controller for the immigration purposes. The controller that discloses the personal data is exempt from the GDPR’s provisions on:

The exemption only applies to the same extent that the second controller is exempt from these provisions.

Functions designed to protect the public

This exemption can apply if you process personal data for the purposes of discharging one of six functions designed to protect the public.

The first four functions must: be conferred on a person by enactment; be a function of the Crown, a Minister of the Crown or a government department; or be of a public nature and exercised in the public interest. These functions are:

  1. to protect the public against financial loss due to the seriously improper conduct (or unfitness, or incompetence) of financial services providers, or in the management of bodies corporate, or due to the conduct of bankrupts;
  2. to protect the public against seriously improper conduct (or unfitness, or incompetence);
  3. to protect charities or community interest companies against misconduct or mismanagement in their administration, to protect the property of charities or community interest companies from loss or misapplication, or to recover the property of charities or community interest companies; or
  4. to secure workers’ health, safety and welfare or to protect others against health and safety risks in connection with (or arising from) someone at work.

The fifth function must be conferred by enactment on: the Parliamentary Commissioner for Administration; the Commissioner for Local Administration in England; the Health Service Commissioner for England; the Public Services Ombudsman for Wales; the Northern Ireland Public Services Ombudsman; the Prison Ombudsman for Northern Ireland; or the Scottish Public Services Ombudsman. This function is:

  1. to protect the public from maladministration, or a failure in services provided by a public body, or from the failure to provide a service that it is a function of a public body to provide.

The sixth function must be conferred by enactment on the Competition and Markets Authority. This function is:

  1. to protect members of the public from business conduct adversely affecting them, to regulate conduct (or agreements) preventing, restricting or distorting commercial competition, or to regulate undertakings abusing a dominant market position.

If you process personal data for any of the above functions, you are exempt from the GDPR’s provisions on:

But the exemption only applies to the extent that complying with these provisions would be likely to prejudice the proper discharge of your functions. If you can comply with these provisions and discharge your functions as normal, you must do so.

Audit functions

This exemption can apply if you process personal data for the purposes of discharging a function conferred by enactment on:

It exempts you from the GDPR’s provisions on:

But the exemption only applies to the extent that complying with these provisions would be likely to prejudice the proper discharge of your functions. If it does not, you must comply with the GDPR as normal.

Bank of England functions

This exemption can apply if you process personal data for the purposes of discharging a function of the Bank of England:

It exempts you from the GDPR’s provisions on:

But the exemption only applies to the extent that complying with these provisions would be likely to prejudice the proper discharge of your functions. If this is not so, the exemption does not apply.

Regulatory functions relating to legal services, the health service and children’s services

This exemption can apply if you process personal data for the purposes of discharging a function of:

It exempts you from the GDPR’s provisions on:

But the exemption only applies to the extent that complying with these provisions would be likely to prejudice the proper discharge of your functions. If you can comply with these provisions and discharge your functions as normal, you cannot rely on the exemption.

Other regulatory functions

This exemption can apply if you process personal data for the purpose of discharging a regulatory function conferred under specific, listed legislation on any one of 14 bodies and persons. These are:

It exempts you from the GDPR’s provisions on:

But the exemption only applies to the extent that complying with these provisions would be likely to prejudice the proper discharge of your function. If this is not so, you must comply with these provisions as you normally would.

Parliamentary privilege

This exemption can apply if it is required to avoid the privileges of either House of Parliament being infringed.

It exempts you from the GDPR’s provisions on:

But if you can comply with these provisions without infringing parliamentary privilege, you must do so.

Judicial appointments, independence and proceedings

This exemption applies if you process personal data:

It exempts you from the GDPR’s provisions on:

Additionally, even if you do not process personal data for the reasons above, you are also exempt from the same provisions of the GDPR to the extent that complying with them would be likely to prejudice judicial independence or judicial proceedings.

Crown honours, dignities and appointments

This exemption applies if you process personal data for the purposes of:

It exempts you from the GDPR’s provisions on:

Journalism, academia, art and literature

This exemption can apply if you process personal data for:

Together, these are known as the ‘special purposes’.

The exemption relieves you from your obligations regarding the GDPR’s provisions on:

But the exemption only applies to the extent that:

When deciding whether it is reasonable to believe that publication would be in the public interest, you must (if relevant) have regard to:

We expect you to be able to explain why the exemption is required in each case, and how and by whom this was considered at the time. The ICO does not have to agree with your view – but we must be satisfied that you had a reasonable belief.

Research and statistics

This exemption can apply if you process personal data for:

It does not apply to the processing of personal data for commercial research purposes such as market research or customer satisfaction surveys.

It exempts you from the GDPR’s provisions on:

The GDPR also provides exceptions from its provisions on the right to be informed (for indirectly collected data) and the right to erasure.

But the exemption and the exceptions only apply:

Additionally, the GDPR contains specific provisions that adapt the application of the purpose limitation and storage limitation principles when you process personal data for scientific or historical research purposes, or statistical purposes. See the Guide pages on these principles for more detail.

Archiving in the public interest

This exemption can apply if you process personal data for archiving purposes in the public interest.

It exempts you from the GDPR’s provisions on:

The GDPR also provides exceptions from its provisions on the right to be informed (for indirectly collected data) and the right to erasure.

But the exemption and the exceptions only apply:

Additionally, the GDPR contains specific provisions that adapt the application of the purpose limitation and storage limitation principles when you process personal data for archiving purposes in the public interest. See the Guide pages on these principles for more detail.

Further reading – The National Archives

The National Archives is the official archive and publisher for the UK Government and for England and Wales. It has published a detailed guide to archiving personal data.

Health data – processed by a court

This exemption can apply to health data (personal data concerning health) that is processed by a court.

It exempts you from the GDPR’s provisions on:

But the exemption only applies if the health data is:

If you think this exemption might apply to your processing of personal data, see paragraph 3(2) of Schedule 3, Part 2 of the DPA 2018 for full details of the statutory rules.

Health data – an individual’s expectations and wishes

This exemption can apply if you receive a request (in exercise of a power conferred by an enactment or rule of law) for health data from:

It exempts you from the GDPR’s provisions on:

But the exemption only applies to the extent that complying with the request would disclose information that:

Health data – serious harm

This exemption can apply if you receive a subject access request for health data.

It exempts you from the GDPR’s provisions on the right of access regarding your processing of health data.

But the exemption only applies to the extent that compliance with the right of access would be likely to cause serious harm to the physical or mental health of any individual. This is known as the ‘serious harm test’ for health data.

You can only rely on this exemption if:

If you think this exemption might apply to a subject access request you have received, see paragraph 2(1) of Schedule 3, Part 2 of the DPA 2018 for full details of who is considered an appropriate health professional.

Health data – restriction of the right of access

This is a restriction rather than an exemption. It applies if you receive a subject access request for health data.

It restricts you from disclosing health data in response to a subject access request, unless:

This restriction does not apply if you are satisfied that the health data has already been seen by, or is known by, the individual it is about.

If you think this restriction could apply to a subject access request you have received, see paragraph 2(1) of Schedule 3, Part 2 of the DPA 2018 for full details of who is considered an appropriate health professional.

Social work data – processed by a court

This exemption can apply to social work data (personal data that isn’t health or education data) processed by a court. If you are unsure whether the data you process is social work data, see paragraphs 7(1) and 8 of Schedule 3, Part 3 of the DPA 2018 for full details of what this is.

The exemption relieves you from your obligations regarding the GDPR’s provisions on:

But the exemption only applies if the social work data is:

If you think this exemption might apply to your processing of personal data, see paragraph 9(2) of Schedule 3, Part 3 of the DPA 2018 for full details of the statutory rules.

Social work data – an individual’s expectations and wishes

This exemption can apply if you receive a request (in exercise of a power conferred by an enactment or rule of law) for social work data concerning an individual from:

It exempts you from the GDPR’s provisions on:

But the exemption only applies to the extent that complying with the request would disclose information that:

Social work data – serious harm

This exemption can apply if you receive a subject access request for social work data.

It exempts you from the GDPR’s provisions on the right of access regarding your processing of social work data.

But the exemption only applies to the extent that complying with the right of access would be likely to prejudice carrying out social work because it would be likely to cause serious harm to the physical or mental health of any individual. This is known as the ‘serious harm test’ for social work data.

Social work data – restriction of the right of access

This is a restriction rather than an exemption. It applies if you process social work data as a local authority in Scotland (as defined by the Social Work (Scotland) Act 1968), and you receive a subject access request for that data.

It restricts you from disclosing social work data in response to a subject access request if:

If there is a question as to whether you need to comply with a subject access request in this situation, you must inform the Principal Reporter within 14 days of the question arising.

You must not disclose the social work data in response to the subject access request unless the Principal Reporter has told you they think the serious harm test for social work data is not met.

Education data – processed by a court

This exemption can apply to education data (personal data in an educational record) processed by a court. If you are unsure whether the data you process is ‘education data’, see paragraphs 13-17 of Schedule 3, Part 4 of the DPA 2018 for full details of what this is.

The exemption relieves you from your obligations regarding the GDPR’s provisions on:

But the exemption only applies if the education data is:

If you think this exemption might apply to your processing of personal data, see paragraph 18(2) of Schedule 3, Part 4 of the DPA 2018 for full details of the statutory rules.

Education data – serious harm

This exemption can apply if you receive a subject access request for education data.

It exempts you from the GDPR’s provisions on the right of access regarding your processing of education data.

But the exemption only applies to the extent that complying with the right of access would be likely to cause serious harm to the physical or mental health of any individual. This is known as the ‘serious harm test’ for education data.

Education data – restriction of the right of access

This is a restriction rather than an exemption. It applies if you process education data as an education authority in Scotland (as defined by the Education (Scotland) Act 1980), and you receive a subject access request for that data.

It restricts you from disclosing education data in response to a subject access request if:

If there is a question as to whether you need to comply with a subject access request in this situation, you must inform the Principal Reporter within 14 days of the question arising.

You must not disclose the education data in response to the subject access request unless the Principal Reporter has told you they think the serious harm test for education data is not met.

Child abuse data

This exemption can apply if you receive a request (in exercise of a power conferred by an enactment or rule of law) for child abuse data. If you are unsure whether the data you process is ‘child abuse data’, see paragraph 21(3) of Schedule 3, Part 5 of the DPA 2018 for a definition.

The exemption applies if the request is from:

It exempts you from the GDPR’s provisions on the right of access.

But the exemption only applies to the extent that complying with the request would not be in the best interests of the individual who the child abuse data is about.

This exemption can only apply in England, Wales and Northern Ireland. It cannot apply in Scotland.

Corporate finance

This exemption can apply if you process personal data in connection with a corporate finance service (e.g. if you underwrite financial instruments or give corporate finance advice to undertakings) that you are permitted to provide (as set out in the Financial Services and Markets Act 2000).

It exempts you from the GDPR’s provisions on:

But the exemption only applies to the extent that complying with the provisions above would:

Management forecasts

This exemption can apply if you process personal data for the purposes of management forecasting or management planning in relation to a business or other activity.

It exempts you from the GDPR’s provisions on:

But the exemption only applies to the extent that compliance with the above provisions would be likely to prejudice the conduct of the business or activity.

Example

The senior management of an organisation is planning a re-organisation. This is likely to involve making certain employees redundant, and this possibility is included in management plans. Before the plans are revealed to the workforce, an employee makes a subject access request. In responding to that request, the organisation does not have to reveal its plans to make him redundant if doing so would be likely to prejudice the conduct of the business (perhaps by causing staff unrest before the management’s plans are announced).

Negotiations

This exemption can apply to personal data in records of your intentions relating to any negotiations with an individual.

It exempts you from the GDPR’s provisions on:

But it only applies to the extent that complying with the above provisions would be likely to prejudice negotiations with that individual.

Example

An individual makes a claim to his insurance company. The claim is for compensation for personal injuries he sustained in an accident. The insurance company disputes the seriousness of the injuries and the amount of compensation it should pay. An internal paper sets out the company’s position on these matters including the maximum sum it would be willing to pay to avoid the claim going to court. If the individual makes a subject access request to the insurance company, it would not have to send him the internal paper – because doing so would be likely to prejudice the negotiations to settle the claim.

Confidential references

This exemption applies if you give or receive a confidential reference for the purposes of prospective or actual:

It exempts you from the GDPR’s provisions on:

Example

Company A provides an employment reference in confidence for one of its employees to company B. If the employee makes a subject access request to company A or company B, the reference will be exempt from disclosure. This is because the exemption applies to the reference regardless of whether it is in the hands of the company that gives it or receives it.

Exam scripts and exam marks

This exemption can apply to personal data in exam scripts.

It exempts you from the GDPR’s provisions on:

But it only applies to the information recorded by candidates. This means candidates do not have the right to copies of their answers to the exam questions.

However, the information recorded by the person marking the exam is not exempt from the above provisions. If an individual makes a subject access request for this information before the results are announced, special rules apply to how long you have to comply with the request. You must provide the information:

Protection of the rights of others

Paragraphs 16 and 17 of Schedule 2, Part 3 of the DPA 2018 provide an exemption that can apply if you receive a subject access request for information containing the personal data of more than one individual.

See our Guide page on the right of access for guidance on what to do if you receive a request for information that includes the personal data of other people.

Applications

To assist organisations in applying the requirements of the GDPR in different contexts, we are working to produce guidance in a number of areas. For example, children’s data, CCTV, big data, etc.

This section will expand when our work on this guidance is complete.

Children

At a glance

Checklists

General

We comply with all the requirements of the GDPR, not just those specifically relating to children and included in this checklist.

We design our processing with children in mind from the outset, and use a data protection by design and by default approach.

We make sure that our processing is fair and complies with the data protection principles.

As a matter of good practice, we use DPIAs to help us assess and mitigate the risks to children.

If our processing is likely to result in a high risk to the rights and freedom of children then we always do a DPIA.

As a matter of good practice, we take children’s views into account  when designing our processing.

 

Bases for processing a child’s personal data

When relying on consent, we make sure that the child understands what they are consenting to, and we do not exploit any imbalance of power in the relationship between us.

When relying on ‘necessary for the performance of a contract’, we consider the child’s competence to understand what they are agreeing to, and to enter into a contract.

When relying upon ‘legitimate interests’, we take responsibility for identifying the risks and consequences of the processing, and put age appropriate safeguards in place.

 

Offering an information Society Service (ISS) directly to a child, on the basis of consent

If we decide not to offer our ISS (online service) directly to children, then we mitigate the risk of them gaining access, using measures that are proportionate to the risks inherent in the processing.

When offering ISS to UK children on the basis of consent, we make reasonable efforts (taking into account the available technology and the risks inherent in the processing) to ensure that anyone who provides their own consent is at least 13 years old.

When offering ISS to UK children on the basis of consent, we obtain parental consent to the processing for children who are under the age of 13, and make reasonable efforts (taking into account the available technology and risks inherent in the processing) to verify that the person providing consent holds parental responsibility for the child.

When targeting wider European markets we comply with the age limits applicable in each Member State.

We regularly review available age verification and parental responsibility verification mechanisms to ensure we are using appropriate current technology to reduce risk in the processing of children’s personal data.

We don’t seek parental consent when offering online preventive or counselling services to a child.

 

Marketing

When considering targeting marketing at children we take into account their reduced ability to recognise and critically assess the purposes behind the processing and the potential consequences of providing their personal data.

We take into account sector specific guidance on marketing, such as that issued by the Advertising Standards Authority, to make sure that children’s personal data is not used in a way that might lead to their exploitation.

We stop processing a child’s personal data for the purposes of direct marketing if they ask us to.

We comply with the direct marketing requirements of the Privacy and Electronic Communications Regulations (PECR).

 

Solely automated decision making (including profiling)

We don’t usually use children’s personal data to make solely automated decisions about them if these will have a legal, or similarly significant effect upon them.

If we do use children’s personal data to make such decisions then we make sure that one of the exceptions in Article 22(2) applies and that suitable, child appropriate, measures are in place to safeguard the child’s rights, freedoms and legitimate interests.

In the context of behavioural advertising, when deciding whether a solely automated decision has a similarly significant effect upon a child, we take into account: the choices and behaviours that we are seeking to influence; the way in which these might affect the child; and the child’s increased vulnerability to this form of advertising; using wider evidence on these matters to support our assessment. 

We stop any profiling of a child that is related to direct marketing if they ask us to.

 

Data Sharing

We follow the approach in the ICO’s Data Sharing Code of Practice.

 

Privacy notices

Our privacy notices are clear, and presented in plain, age-appropriate language.

We use child friendly ways of presenting privacy information, such as: diagrams, cartoons, graphics and videos, dashboards, layered and just-in-time notices, icons and symbols.

We explain to children why we require the personal data we have asked for, and what we will do with it, in a way which they can understand.

As a matter of good practice, we explain the risks inherent in the processing, and how we intend to safeguard against them, in a child friendly way, so that children (and their parents) understand the implications of sharing their personal data.

We tell children what rights they have over their personal data in language they can understand.

 

The child’s data protection rights

We design the processes by which a child can exercise their data protection rights with the child in mind, and make them easy for children to access and understand.

We allow competent children to exercise their own data protection rights.

If our original processing was based on consent provided when the individual was a child, then we comply with requests for erasure whenever we can.

We design our processes so that, as far as possible, it is as easy for a child to get their personal data erased as it was for them to provide it in the first place.

In brief

What's new?

A child’s personal data merits particular protection under the GDPR.

If you rely on consent as your lawful basis for processing personal data when offering an ISS directly to children, in the UK only children aged 13 or over are able provide their own consent. You may therefore need to verify that anyone giving their own consent in these circumstances is old enough to do so. For children under this age you need to get consent from whoever holds parental responsibility for them - unless the ISS you offer is an online preventive or counselling service. You must also make reasonable efforts (using available technology) to verify that the person giving consent does, in fact, hold parental responsibility for the child.

Children also merit specific protection when you are collecting their personal data and using it for marketing purposes or creating personality or user profiles.

You should not usually make decisions about children based solely on automated processing if this will have a legal or similarly significant effect on them. The circumstances in which the GDPR allows you to make such decisions are limited and only apply if you have suitable measures to protect the interests of the child in place.

You must write clear and age-appropriate privacy notices for children.

The right to have personal data erased is particularly relevant when the individual gave their consent to processing when they were a child.

What should our general approach to processing children’s personal data be?

Children need particular protection when you are collecting and processing their personal data because they may be less aware of the risks involved.

If you process children’s personal data, or think that you might, then you should consider the need to protect them from the outset, and design your systems and processes with this in mind.

Fairness, and compliance with the data protection principles, should be central to all your processing of children’s personal data.

It is good practice to consider children’s views when designing your processing.

What do we need to consider when choosing a basis for processing children’s personal data?

As with adults, you need to have a lawful basis for processing a child’s personal data and you need to decide what that basis is before you start processing. You can use any of the lawful bases for processing set out in the GDPR when processing children’s personal data. But for some bases there are additional things you need to think about when your data subject is a child.

If you wish to rely upon consent as your lawful basis for processing, then you need to ensure that the child can understand what they are consenting to, otherwise the consent is not ‘informed’ and therefore is invalid. There are also some additional rules for online consent.

If you wish to rely upon ‘performance of a contract’ as your lawful basis for processing, then you must consider the child’s competence to agree to the contract and to understand the implications of the processing.

If you wish to rely upon legitimate interests as your lawful basis for processing you must balance your own (or a third party’s) legitimate interests in processing the personal data against the interests and fundamental rights and freedoms of the child. This involves a judgement as to the nature and purpose of the processing and the potential risks it poses to children. It also requires you to take appropriate measures to safeguard against those risks.

What are the rules about an ISS and consent?

Consent is not the only basis for processing children’s personal data in the context of an ISS.

If you rely upon consent as your lawful basis for processing personal data when offering an ISS directly to children, in the UK only children aged 13 or over can consent for themselves.  You therefore need to make reasonable efforts to verify that anyone giving their own consent in this context is old enough to do so.

For children under this age you need to get consent from whoever holds parental responsibility for them - unless the ISS you offer is an online preventive or counselling service. You must make reasonable efforts (using available technology) to verify that the person giving consent does, in fact, hold parental responsibility for the child.

You should regularly review the steps you are taking to protect children’s personal data and consider whether you are able to implement more effective verification mechanisms when obtaining consent for processing.

What if we want to target children with marketing?

Children merit specific protection when you are using their personal data for marketing purposes. You should not exploit any lack of understanding or vulnerability.

They have the same right as adults to object to you processing their personal data for direct marketing. So you must stop doing this if a child (or someone acting on their behalf) asks you to do so.

If you wish to send electronic marketing messages to children then you also need to comply with the Privacy and Electronic Communications Regulations 2003.

What if we want to profile children or make automated decisions about them?

In most circumstances you should not make decisions about children that are based solely on automated processing, (including profiling) if these have a legal effect on the child, or similarly significantly affect them. If you do make such decisions you need to make sure that you put suitable measures in place to protect the rights, freedoms and legitimate interests of the child. 

If you profile children then you must provide them with clear information about what you are doing with their personal data. You should not exploit any lack of understanding or vulnerability.

You should generally avoid profiling children for marketing purposes. You must respect a child’s absolute right to object to profiling that is related to direct marketing, and stop doing this if they ask you to.

It is possible for behavioural advertising to ‘similarly significantly affect’ a child. It depends on the nature of the choices and behaviour it seeks to influence.

What about data-sharing and children’s personal data?

If you want to share children’s personal data with third parties then you need to follow the advice in our data sharing Code of Practice. We also recommend that you do a DPIA.

How do the exemptions apply to children’s personal data?

The exemptions apply to children’s personal data in the same way as they apply to adults’ personal data. They may allow you to process children’s personal data in ways that the GDPR would not otherwise allow. You need to consider and apply the specific provisions of the individual exemption.

How does the right to be informed apply to children?

You must provide children with the same information about what you do with their personal data as you give adults. It is good practice to also explain the risks inherent in the processing and the safeguards you have put in place.

You should write in a concise, clear and plain style for any information you are directing to children. It should be age-appropriate and presented in a way that appeals to a young audience.

What rights do children have?

Children have the same rights as adults over their personal data which they can exercise as long as they are competent to do so. Where a child is not considered to be competent, an adult with parental responsibility may usually exercise the child’s data protection rights on their behalf.

How does the right to erasure apply to children?

Children have the same right to have their personal data erased as adults. This right is particularly relevant when an individual originally gave their consent to processing when they were a child, without being fully aware of the risks.

One of the specified circumstances in which the right to erasure applies is when you collected the personal data of a child under the lawful basis of consent, when offering an ISS directly to a child.

It should generally be as easy for a child to exercise their right to erasure as it was for them to provide their personal data in the first place.

Further reading

We have published detailed guidance on children and the GDPR.