Garda Requests Under Section 41(b) of the Data Protection Act 2018

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The General Data Protection Regulation (GDPR) restricts how personal data may be processed by a data controller. In particular, personal data may not be used for a purpose incompatible with the purpose for which the data was initially collected.

An exception to this is Section 41(b) of the Data Protection Act 2018. This allows a data controller operating in Ireland to disclose personal data to a third party to the extent that this is “necessary and proportionate for the purposes of preventing, detecting, investigating or prosecuting criminal offences.

Typically, this may arise following a request from An Garda Síochána or another law enforcement body for disclosure of information containing personal data. Such requests are not uncommon in sectors such as financial services and telecommunications, although it is up to each company to handle such requests in a legally compliant manner.

However, some data controllers might be alarmed to receive a request from the Gardaí seeking disclosure of information under Section 41(b) of the Data Protection Act 2018. This might be for information relating to named individuals or for a copy of CCTV footage. The request might be marked urgent, refer to criminal allegations, or be somewhat broad or exploratory in nature. You might feel under pressure to comply with the request.

The most important thing to know is that, unless there is a legal obligation or a mandatory reporting requirement, you don’t have to comply with a request for disclosure of personal data under Section 41(b) of the Data Protection Act 2018. However, the catch is that if you choose to comply with the request in full or in part under Section 41(b), you bear the risk as data controller. This means being satisfied that disclosing the personal data is necessary and proportionate for the purpose of preventing, detecting, investigating or prosecuting criminal offences. This places a burden on you as data controller to justify the processing and keep appropriate records to demonstrate GDPR compliance. You also have other obligations, including transparency to data subjects, data minimisation, facilitating data subject rights, and ensuring appropriate data security.

If information concerning individuals or video footage is important for a criminal investigation, the Gardaí can and often will get a District Court order or even a search warrant. And if this is served on you, there will be a legal obligation to provide the specific information, and you will have protection as a result. Depending on the circumstances, this may be preferable to complying voluntarily with a request for disclosure under Section 41(b), and taking on the risk and potential liability of getting it wrong.

And if you choose not to comply with a request for disclosure under Section 41(b) of the Data Protection Act 2018, which you are entitled to do in the absence of any other legal obligation or mandatory reporting requirement, bear in mind that the communication received may likely contain sensitive or confidential information that should not be retained unless there is a specific reason to do so.

Who decides the truth?

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Earlier this month Minister for Health, Simon Harris, launched a Vaccine Alliance – a network of healthcare professionals, policy makers, patient advocates, students and representatives from groups most affected by vaccine hesitancy – to boost the uptake rate of childhood vaccines. Recently four European countries, including the UK, lost their measles-free status and there are fears Ireland could follow suit. The decline in vaccine uptakes has been linked to the spread of misinformation – or “fake news” – on social media platforms. Minister Harris threw down the gauntlet to social media companies to “decide which side they want to be on” and take decisive action to help reverse this trend.

The challenge of regulating tech companies in the public interest, particularly social media platforms, has been explored in depth. Proposed measures become entangled in overlapping areas of tech, policy, piracy, free speech and platform liability.  Differentiating between illegal speech and ‘opinions I don’t agree with’ (like vaccine disinformation) presents serious challenges to freedom of expression and plurality; at the same time making social media platforms the arbiters of truth is manifestly undesirable. Regulatory overreach would likely be detrimental to the free access to the services that modern society has come to rely upon as well as stifle innovation.

On the other hand the algorithms that drive the social media companies’ traffic favour provocative content that engages users and prolongs their time on the platform, providing a captive audience for targeted ads. In effect, social media has become weaponised to serve advertisers – disinformation is a profitable business.

Across the board the response has been a patchwork of work-arounds. In 2018, the European Commission published its report on a ‘Multi-dimensional Approach to Disinformation’, which opted for a co-regulatory Code of Practice and promotion of media literacy. Companies themselves have taken initiatives to manage misinformation – the broad consensus around the potential harm caused by vaccine misinformation has assisted this agenda. Facebook works with third-party checkers to reduce the distribution of stories that have been flagged as misleading. Instagram has said it would hide hashtags that have a “high percentage” of inaccurate vaccine information with mixed results. Twitter is launching a new tool that directs users to credible public health resources. In February this year, YouTube announced that is demonetising anti-vaccination content. This month, Google adjusted its search algorithm to boost original journalism.

Clearly, a degree of self-regulation has already been adopted by these tech giants. But private entities, that are change agents in the areas of privacy, competitiveness, freedom of speech and national security and law enforcement, operating without oversight run the risk of the tail wagging the dog.

As part of its remit to transpose the Audiovisual Media Services Directive (EU) 2018/1808 (AVMSD) into Irish law for September 2020, the Broadcasting Authority of Ireland (BAI) will effectively become EU-wide watchdog for video on-demand services that are based in Ireland. Under the Directive, providers will require age verification, parental controls and a ‘robust’ complaints mechanism. The BAI would become a statutory regulator with legally enshrined enforcement power to police social media sites’ video content.

The UK government published its Online Harms White Paper on 26 June 2019 which proposed both government and industry-led initiatives including developing a regulatory framework and independent regulator, user redress and a statutory duty of care imposed on social media companies which focuses on a set of desirable outcomes that it would leave to the companies to decide how to implement, not unlike the implementation regime for GDPR. Apart from the measures to be adopted as part of its duties with respect to the AVMSD, the Irish government has not proposed any parallel regime, despite the obvious and pressing need to do so in light of Ireland’s unique position as EU country of incorporation for a large number of global social media companies. Until it does, government talk about the onus being on social media companies to decide which side they want to be on, is cheap.

What’s the difference between Privacy and Data Protection?

In Ireland, it’s increasingly common to see the term “privacy” being used interchangeably or as a substitute for “data protection”. This may be due to lack of awareness, the influence of U.S. terminology, or marketing preferences for a catchier term. Whatever the reason, it is important to understand the difference between the two terms in order to avoid confusion about legal obligations and rights.

Privacy is a broad term encompassing a number of rights, such as the right to be let alone and the right to respect for private and family life, home and communications. A useful description of privacy is from the UK’s Calcutt Committee report of 1990 as “the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information.” In Ireland, privacy rights derive mainly from the Constitution of Ireland (as an unenumerated personal right recognised by Article 40.3), Article 8 of the European Convention on Human Rights, and Article 7 of the EU Charter of Fundamental Rights.

Data Protection means the protection of individuals in relation to the collection, use or processing of personal data, i.e. information that relates to them as an identified or identifiable person. In Ireland, data protection is governed by the General Data Protection Regulation (GDPR) and the Data Protection Act 2018. Businesses and organisations have data protection obligations, including having a legal basis for collecting, using or processing personal data, compliance with data protection principles, and having technical and organisational measures in place to meet accountability requirements. Individuals have data protection rights, including information, access and erasure, as well as making a complaint to the Data Protection Commission or taking legal action where their rights have been infringed or they have suffered damage.

Where a breach of the GDPR is likely to cause risk or harm to an individual, one of the adverse impacts could of course also include a loss of privacy. However, the GDPR is not a privacy law. In fact, the word “privacy” does not appear anywhere in its articles or recitals.

It’s important to know the difference between privacy and data protection to avoid confusion and misunderstanding about legal obligations and rights. It is also essential for businesses and organisations to understand that they have data protection obligations, and individuals have data protection rights, in situations which often have nothing to do with privacy.

Common ground for GDPR and blockchain?

Block Chain Network Concept – Distributed Ledger Technology – Blockchain (https://www.stockvault.net/photo/241737/block-chain-network-concept-distributed-ledger-technology)

On 12 July 2019 the European Parliament released its report on Blockchain and the General Data Protection Regulation. The report aims to clarify the existing tensions between the rights of data subjects and blockchain technology and propose solutions, while reassuring its proponents that the EU institutions recognise the potentially game-changing applications for blockchain technology across multiple industries, as was addressed in a European Parliament Resolution of 3 October 2018.

The GDPR is principles-based and these principles inform everything that flows from their application, including its scope to be technology neutral, as is expressly mentioned in recitals, and thus future proof. Blockchain technology is built on blocks of digital information, or nodes, that are distributed across multiple data controllers. Each node builds on the last and, to maintain the integrity of the chain, cannot be modified or altered after each transaction is completed.

The challenges that blockchain’s presents to the GDPR framework are immediately apparent. The GDPR is built on the presumption of an identifiable data controller, or joint controllers, who is accountable for how personal data is processed. Moreover, the technical specificities of the blockchain model are not easily aligned with data subjects’ rights to rectification or erasure of personal data, or the right to be forgotten. As the technology creates a perpetual ledger, principles such as data minimisation and storage also fall foul.

The report also identifies various ways in which blockchain can be used to advance GDPR objectives; without the need for a single (or joint) data controller, it offers transparency over who has accessed data. Data subject rights of access and portability are facilitated by the technology. Ultimately, where blockchain technology has been in the processing of personal data, its compliance with GDPR should be assessed on a case-by-case basis taking into consideration factors such as the context (public v private) and whether the encryption of the data meets the threshold for anonymisation.

The above-mentioned EP resolution makes it clear that there is an explicit intention to support the adoption of blockchain technology across the EU. For GDPR compliance the report proposes regulatory guidance, codes of conduct and certification mechanisms to provide guidance. Alternately, research funding could made available for interdisciplinary research on blockchain protocols that could be ‘compliant by design’.

What is clear is that at present there is nothing concrete in the pipeline that will assuage the concerns of privacy advocates and the question remains – where there is a will can a way be found?

Commission decision threatens residential listings

Former Woolworths store in Acocks Green - Retail Unit To Let - sign
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Last week the WRC ordered property website daft.ie to remove adverts that were found to be in breach of the Equal Status Acts. Adverts posted by users that contained terms like “suit young professionals, “rent allowance not accepted”, “references required” were held to be discriminatory by the Commission.  

The WRC found that daft.ie has vicarious liability for advertisements placed on its website by third parties where these were in breach of the Acts. It held that daft.ie was not shielded from these obligations by virtue of its status as an ‘Information Society Service Provider’ (ISSP) under the eCommerce Directive (2000/31/EC), which allows internet intermediaries limited exemption from secondary liability as ‘conduits’ or transmitters of information.

The WRC adjudicator declared that there was no evidence before it to allow the exemption under the Directive and it directed daft.ie to implement a methodology to “identify, monitor and block discriminatory advertising on its website”. Without a more detailed description – and none is offered in the ruling – of how the WRC adjudicator arrived at her decision, it is impossible to assess the weight that was given to various factors outlined in the submissions.

The carving out of the exemption is a cornerstone of the eCommerce Directive and aims at preserving the intermediary model and preventing unintended collateral censorship. The Directive does allow for a service provider to terminate or prevent an infringement at the direction of a court or administrative authority; however, the direction by the adjudicator for daft.ie to put in place a system that would automatically flag potentially discriminatory postings to the site conflicts with provisions of the Directive that prevent member states from imposing a general obligation on ISSPs to monitor the information that they transmit or store, nor to actively seek facts or circumstances indicating illegal activity.

Considering the near inevitability of occasional users of daft.ie’s services posting adverts using discriminatory language, the question remains whether daft.ie is the correct entity to automatically screen out all potentially discriminatory language. In light of rapidly evolving technological solutions to ‘policing’ the internet, there have been high-level discussions about whether the current Directive needs to be revised. Certainly, the WRC decision referred to daft.ie competitors that have adopted a process such as the one it proposes. Nevertheless, as the law currently stands, there is a question mark over whether the WRC correctly applied EU law and whether on appeal the High Court would uphold its decision.

Risk-based approach to GDPR compliance

In practice, we are coming across some confusion about the GDPR’s risk-based approach to compliance. It is important not to confuse this concept with risks facing your business or organisation.

Risk is the possibility of something happening which may cause loss, harm or damage, and it is usually assessed in terms of likelihood x severity.

In a GDPR compliance context, and where a risk-based approach is relevant, this means risk to the rights of data subjects that may result from you processing their personal data. In other words, risk to individuals, not to your business or organisation.

GDPR compliance obligations that refer to risk include accountability measures, data security measures, data breach notification, Data Protection Impact Assessment (DPIA), and privacy by design.

While the term “risk” is not defined in the GDPR, Recital 75 provides useful guidance.

When undertaking risk assessment under GDPR, the risk to individuals must be clearly understood and distinguished from the operational risks affecting your organisation, including possible regulatory sanctions, reputational harm and/or legal action that might result from GDPR non-compliance.

Privacy Notices and GDPR

With the prospect of increased regulatory activity ahead, it is important for businesses and organisations to ensure that their Privacy Notices are compliant.

Under GDPR, data controllers must provide individuals with mandatory information about the processing of their personal data and their rights, and the most effective way to do this is by a Privacy Notice (sometimes referred to as a Privacy Policy or a Privacy Statement, but the name is not important – what matters is the content and how it is provided).

Privacy Notices are an essential part of GDPR transparency obligations, and it should be transparent to individuals that their personal data is being processed, to what extent, and what their rights are.

More than one Privacy Notice version may be needed depending on the category of individuals involved (customers, employees, etc.).

The information has to be provided in a clear, easily accessible format at the time personal data is obtained from individuals, or within one month when obtained from another source.

The mandatory categories of information to be provided are set out in Articles 13-14, and include purposes of processing, legal basis for processing, legitimate interests for processing (if applicable), data sharing, international transfers, and data retention.

Working all this out, with documentation to meet the requirements of accountability, can be challenging for businesses and organisations.

It may be necessary to refresh data mapping or review justifications for legal basis.

Privacy Notices should also align with the Records of Processing Activities (Article 30).

Privacy Notices are a critical part of GDPR compliance, but they are not a once-off exercise, and must be kept under review to reflect your processing activities.