Sunday, 30 October 2016

Post Brexit, what options are available for a GDPR-light Data Protection Act?

Let’s think the unthinkable.

Lets assume that, post Brexit, the British Government has an opportunity to decide how its data protection legislation should reflect the requirements of an aspiring British economy. And let’s assume that the Minister with responsibility for Data Protection asks for options about trimming back those elements of the General Data Protection Regulation that are unduly burdensome and, in practice, actually do very little to safeguard fundamental human rights.

Why might a Minister make such a request?

Just think of the pressures that are likely to face the public purse. Data controllers in the public sector will continue to have significant budgetary pressures over the next decade. So, all statutory obligations that have cost implications will need to be reviewed and justified. Difficult choices will need to be made. Costs that cannot be justified shouldn’t be permitted to continue to be imposed. And if the costs can’t be justified for public sector data controllers, then the same arguments ought to be able to be made with regard to (most) other data controllers.

What options might feature on the Minister’s list?

Hopefully, the following issues will be included:

  • Allow data controllers to levy a (relatively small) Subject Access Fee. In 27 years as a data protection practitioner, I’ve encountered too many situations where the individual had raised a complaint with the data controller, and had invoke the SAR process as a way not of resolving their complaint, but to “get their own back” and unnecessarily tie-up scarce resources. Its been my experience that a small SAR fees deter a good many unmeritorious requests.
  • Examine whether the GDPR right to require a data controller to pass an individual’s personal data directly to another data controller really ought to be a “fundamental” right, and thus within the ambit of the GDPR. Surely it should be up to the discretion of the data controller as to whether they should offer such a service to their customers.
  • Query whether it is necessary for there to be an obligation on certain (or any) organisations to appoint a DPO with the responsibilities that are specified in the GDPR. Why should a DPO, for example, be treated so differently to any other senior employee?
  • Query why fines for non-compliance need be set so high, or the higher rate (4% of global turnover) applicable for breaches of so many Articles of the GDPR , when the lower rate (2%) is arguably just as dissuasive.
  • Examine the mess that the rules on transborder data flows will impose (particularly) on cloud providers, and embark on a more pragmatic, less dogmatic, approach.
  • Query whether Data Protection Impact Assessments are required in so many cases, and whether the DPIA needs to address all the issues set out in the GDPR. Why can’t data controllers take a more pragmatic, risk-based approach be taken?
  • Clarify just what processes data controllers should document in order to demonstrate accountability, so that they aren't led to believing that a huge range of, for example, information flows, must be documented in considerable detail, on pain of a whopping fine from the regulator if they don’t.
  • Query whether individual’s rights really need to be as complicated as they are set out in the GDPR – which provides that their rights will depend, to some extent, on the legal grounds that data controllers rely on for processing personal data. Individuals may rightly feel aggrieved if their “rights” are oversold by people keen to sell the virtues of the GDPR. Individuals have to accept that data controllers have rights too.
  • Query the requirements & logistics for obtaining consent when data relating to children are being processed. Ignore the EU’s lower age limit of 13 and continue to accept that, in Scotland at least, young people can be treated differently to other minors when they reach the age of 12.
  • Query whether it is necessary to explain what an organisation’s “legitimate interests” are, when the legitimate interests condition is being used to process data.

These are all issues that don't really affect an individual's “fundamental” human rights. So, there is the possibility that some – or most- of them could be incorporated into a new Data Protection Act without the UK being accused of denying UK citizens rights that are equivalent to the fundamental human rights that are enjoyed by EU citizens.

“Equivalent” rights should not be taken to mean that a post-Brexit Data Protection Act should offer UK citizens rights that are “identical” to their EU chums. After all, countries like the Faroe Islands, Israel & Canada were awarded “adequacy” status by the European Commission a few years ago – not because their laws were identical to the requirements in the Data Protection Directive, but because it was, on balance, expedient for those countries to be so recognised.