The State of Data Privacy Regulations in the UK
Data privacy continues to be a hot topic of conversation in the ecommerce sector and beyond. We examine the current state of the regulations in the UK and provide some practical advice for industry professionals.
An overview of the UK’s data protection landscape
UK businesses that gather and store customer data must fulfil certain moral, legal and ethical obligations to ensure that the information that they hold is secure and that personal data is never compromised or misused.
To this end, data privacy in the UK is governed by two primary pieces of legislation – the Data Protection Act 2018 and the UK General Data Protection Regulations (GDPR).
The primary purpose of the Data Protection Act is to control how personal information is used by gathering organisations who must abide by “data protection principles”, such that the information gathered is used transparently for only specific purposes and that it is held for no longer than is absolutely necessary. Under the Data Protection Act, individuals have the right to know what information is held about them, by whom and for what purpose.
The GDPR defines the data protection principles that relate to the lawful collection and processing of personal data and specifies the accountability duties and obligations of businesses and individuals that gather personal data within the scope of the legislation.
Recent changes and updates in data privacy regulations, including post-Brexit refinements
As of the first of January 2024, a new law has come into effect. The Retained EU Law (Revocation and Reform) Act 2023 (‘REULA’) does not revoke or override the Data Protection Act or GDPR but instead subtly redefines how the laws are interpreted by courts. It abolishes the general principles of EU law and replaces them with domestic law, defines terms which were previously considered to be vague, specifies the Information Commissioner’s Office (ICO)’s enforcement powers and details grounds for processing special category data and applying exemptions.
In addition, and expected later this year, is the Data Protection and Digital Information Bill (No. 2). This Bill will determine how personal information is gathered, processed and utilised, detail the provisions that are necessary to protect electronic communications and signatures, to improve the disclosure processes that are necessary for public service delivery and law enforcement purposes and to formalise the safe storage and use of biometric data.
At the time of writing, this Bill is at the Committee Stage in the House of Lords.
The role and recommendations of the Information Commissioner’s Office (ICO) in enforcing data protection laws
The ICO is an independent body whose role is to provide supervisory oversight of data protection in the UK, upholding public information rights and helping the UK public to understand and feel comfortable with the way in which their personal data is gathered, stored and processed. The ICO is empowered to monitor and enforce the UK GDPR, handling complaints and conducting investigations.
The ICO always acts in a lawful manner and is committed to transparency. It follows the guiding principles of GDPR legislation in terms of accuracy, integrity, confidentiality and accountability, acting as an impartial mediator between data processing organisations and dissatisfied members of the public.
Practical advice for businesses on achieving and maintaining compliance with UK data privacy regulations
Businesses should not collect, use or store any customer personal data unless consent has been granted by said customer in accordance with the specific purposes stated by the collecting organisation in line with Article 6(1)(a) of the UK GDPR .
Customers are entitled to withdraw their consent at any point, and should this happen, the collecting organisation must permanently delete their data unless other legal grounds exist to continue processing it. The customer must be informed when the data is deleted or if the decision is made to continue to hold it.
All businesses that collect customer personal data are legally obligated to comply with the Data Protection Act, GDPR and REULA. This means that they must only collect information which is required for specific purposes, process it lawfully, fairly and in a transparent manner, maintain its accuracy and integrity, and store it securely for as short a period as possible.
Finally, data controllers are required to pay the ICO a data protection charge, unless they are confirmed to be exempt.
The potential impact of non-compliance, including legal repercussions and fines
The ICO is permitted to audit businesses, search their premises, issue warnings, reprimands and fines and to impose limitations and bans on further information processing where deviations from legislation are identified.
When conducting an investigation, the ICO will first issue an Information Notice, and seek a court order in cases of non-compliance. They may then issue an Assessment Notice, which entitles them to enter business premises and conduct searches. If they are satisfied that a breach of legislation has occurred, they will issue an Enforcement Notice.
The ICO will consider the factors detailed in Article 83 of the UK GDPR to determine an appropriate remedy, which may include financial penalties and even prosecution in the criminal courts.
Future trends and expected developments in data privacy regulation in the UK
It is likely that data privacy rules will only tighten as our world becomes increasingly digitised and cyber crime becomes more prevalent. The recent penalty notice imposed upon social media platform TikTok by the ICO highlights the importance of explicit consent and transparency, in particular with relation to childrens’ use of the internet, and businesses will be required to tighten their digital security regime still further.
It is recommended that all UK businesses that have reason to collect, store or process individuals’ personal data review their data privacy policies and, where necessary, employ the GDPR consultancy services of IT specialists such as ourselves to assess their data security processes and assist them in implementing appropriate mechanisms for strengthening their compliance.
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