Brian Pennington

A blog about Cyber Security & Compliance


Personally identifiable information

ICO publishes it’s annual report

The Information Commissioner has released its annual report.

Christopher Graham points to the strengthening of his regulatory powers to show how the legislation continues to develop. In the past year, the ICO was given powers to compulsorily audit NHS bodies for their data handling, while forcing a potential employee to make a subject access request for, for example, their spent criminal record was also made an offence. A law change also made it easier to issue fines to companies behind nuisance calls and texts.

Information Commissioner Christopher Graham said:
“It’s thirty years since this office was established in Wilmslow. We’ve seen real developments in the laws we regulate during that time, particularly over the past year. Just look at the EU Court of Justice ruling on Google search results, a case that could never have been envisaged when the data protection law was established.

“Our role throughout has been to be the responsible regulator of these laws. More than that, we work to demystify some of this legislation, making clear that data protection isn’t to be seen as a hassle or a duck-out, but a fundamental right.

“A good example of that is our role in the new data protection package being developed in Brussels. We’ve been asked for our advice, based on our experience regulating the existing law, while we’ve also provided a sensible commentary on proceedings for interested observers.

“That role will continue this year, in what promises to be a crucial twelve months. The reform is overdue, but it is vital that we get the detail right on a piece of legislation that needs to work in practice and to last.”

“It is striking to see how decisions that were so hard fought in the early years have resulted in routine publication of information. Publication of safety standards of different models of cars, for example; or hygiene standards in pubs and restaurants; and surgical performance records of hospital consultants. Publication is now expected and unexceptionable.

“It’s been the ICO’s job to help public authorities to comply with requests,” Mr Graham will say. “The ICO’s role has led to information being released that time and time again has delivered real benefits for the UK.”

“Our Annual Report is our claim to be listened to in the debates around information rights. It shows the ICO knows what it is talking about.”

The ICO annual report reflects on the financial year 2014/15. Key stats include:

  • 14,268 – data protection concerns received
  • £1,078,500 – total CMPs issued, £386,000 of which were for companies behind nuisance calls or texts
  • 195,431 – helpline calls answered
  • 11.4% – rise in number of concerns raised about nuisance calls and texts (to 180,188)
  • 41 – audits conducted of data controllers (as well as 58 advisory visits to SMEs)
  • 1,177 – Information requests responded to
  • 4.9 million – number of visits to our website

The full report can be found here.


Most consumers do not trust anyone to protect their personal information

Fortinet surveys reveal growing cyber threat concerns as more consumers fear data breaches, while CISOs lack confidence in their ability to stop them.

Despite their concerns, third-party studies reveal consumer behaviours may present greater challenges for organizations that don’t have the right security protections in place.

Two industry surveys commissioned by Fortinet reveals

  • 71% of consumers across the U.S. are more nervous about their personal information being stolen through a data breach than they were just a year ago
  • 28% of IT security professionals are confident they have done enough to prevent a security incident

Despite this shift in consumer sentiment, the research revealed consumers are not taking necessary precautions to protect their personal information. When asked what measures they are implementing to better safeguard their information online:-

  • 76% of respondents said they had merely implemented stronger passwords – a step that is typically required when setting up an online account
  • 20% said they aren’t doing anything at all

It is no question the cyber threat environment remains dynamic and dangerous, and is gaining in severity. According to a recent report released by the Identity Theft Resource Center (IRK), companies in the U.S. experienced a record-breaking 783 data breaches in 2014.

Already in 2015 this trend has continued with the Anthem Health security breach – the largest in history, affecting more than 80 million of its customers, as well as Sony, TV Monde and others. Many of these attacks were initiated by sophisticated hackers looking for ways to circumvent perimeter defences through compromised devices, while others originated from within the network through unsuspecting employees or partners who, without malicious intent, let cyber criminals in.

The amount of entry points cyber criminals can use to infiltrate corporate networks and steal precious information is growing rapidly, as the number of devices connected to the network increase,” said Andrew Del Matte, chief financial officer at Fortinet. “If consumers aren’t taking precautions to protect their devices and proprietary data in their personal lives, it is unlikely they are doing so at work, increasing the possibility of a breach. It is more critical now than ever before for businesses to help safeguard the consumer and customer data for which they are responsible. They must take a multi-layered approach to security to protect against both malicious and non-malicious threats, from both inside and outside of the network

On a scale of 1 to 5 with 1 being “completely trust” and 5 being “don’t trust at all,” consumers were asked how much they trust various business providers and other institutions to protect their information. The survey found:

  • 31% of consumers completely trust their doctors
  • 18% completely trust their health insurance providers
  • 27% completely trust their personal banks
  • 14% completely trust their credit card companies
  • 19% completely trust their employers
  • 4% completely trust retailers

Are Organizations Doing Enough?

In a survey of 250 IT professionals with authority over the security decisions for their organizations,

  • 57% indicated they are most concerned about protecting customer data from cyber criminals.
  • 28% of those surveyed, are completely confident their organizations have done everything possible to prevent a security incident
  • 26% said they were only half-confident that they have taken the necessary measures to protect their organization from potential risk

Consumers are more concerned than ever about their personal information being compromised through a data breach, with good reason,” said Derek Manky, senior security strategist at Fortinet’s FortiGuard Labs. “The evolving threat landscape puts everyone at greater risk, particularly organizations that aren’t taking the time to rethink their approach to security. An old school approach won’t do. Businesses should seek out a best-of-breed security partner with scale, third-party validated solutions and access to the most up-to-date threat intelligence, to safeguard their networks from threats, no matter the type or where it is initiated, today and in the future

UK’s Information Commissioner believes 2013 will the year businesses handle data correctly…!

2013 is the year that commercial imperative of good data handling will be realised

Speaking at the launch of the ICO’s annual report today, Christopher Graham will highlight that consumers have a strong awareness of how their data should be handled, and how this affects their relationship with businesses.

An ICO study into public attitudes toward data protection found that 97% of those surveyed were concerned that organisations would pass or sell-on their personal details. The survey also found more than half (53%) considered details of the products they had bought to be personal information.

Yet in spite of these consumer concerns, only 10% of businesses were aware of the legal limitations of how they could use customer’s personal data.

Information Commissioner Christopher Graham said:

Education and empowerment have been two of the key areas we’ve focused on in the past twelve months. That work is having real benefits: consumers’ awareness of their rights remains strong, and that is empowering people to demand more in return for their data.

“The result is consumers expecting organisations to handle their personal data in a proper way, and in a legal way. Businesses that don’t meet that basic requirement are going to quickly find themselves losing customers.

I think 2013 is the year that organisations will realise the commercial imperative of properly handling customer data. The stats we’ve seen about public concern around personal data show that, as does a company the size of Microsoft choosing privacy as a theme of a national advertising campaign.

“The message to business is simple: consumers understand the value of their personal data, and they expect you to too.

Find the complete report here.

Top Tips from the ICO for when you are moving premises – do not forget to check the cabinets being one

After another NHS body * decides to ignore simple Data Protection guidelines the UK Information Commissioner has repeated his Top 5 Tips to help organisations improve their approach to Data Protection, especially those moving premises:

  1. Personal information is at particular risk when moving premises – make sure its security is a priority. All but one of our monetary penalties issued under the Data Protection Act in 2012/13 were for failing to keep information secure.
  2. Don’t assume anything. This breach happened because two departments each assumed that the other was conducting a final check that all records had been removed or transferred as required. Make sure it is clear who is responsible for what.
  3. Ensure records and equipment containing personal information are moved securely. Where personal information is being moved to other premises, make sure there is a secure means of moving the information and check that it has all been received safely.
  4. Dispose with care. If moving premises requires the disposal of files or computer hardware, make sure that this is done in a secure manner. Remember you are still responsible for what happens to personal data even after it has left through the back door.
  5. Learn from your mistakes. Stockport Primary Care Trust had suffered two similar incidents before this breach, but senior management hadn’t been informed. Put a policy in place to make sure that security incidents are reported and acted upon so that you learn from your mistakes.

* The NHS Commissioning Board was been fined £100,000 by the Information Commissioner’s Office (ICO) after the dissolved Stockport Primary Care Trust left around 1,000 documents including work diaries, letters, referral forms and patient records containing personal information. Some of the documents contained particularly sensitive data relating to 200 patients, including details of miscarriages, child protection issues and, in one case, a police report relating to the death of a child.

The size of the fine reflects the serious nature of the breach and the fact it was not the first time the organisation had “lost information”.

David Smith, Deputy Commissioner and Director of Data Protection, said about the Stockport fine:

It’s crucial that organisations don’t take their eye off the ball when moving premises. This NHS trust’s efforts to keep its patients’ confidential records secure were completely undermined by its failure to properly decommission the premises it was leaving.

The highly sensitive nature of the documents left behind makes this mistake inexcusable, and there can be no doubt that the penalty we’ve served is both necessary and appropriate.

In the last year we have served two six figure penalties on organisations that have left large volumes of personal information behind when leaving a site. These penalties highlight the need for organisations to have effective decommissioning procedures in place and to make absolutely sure that these procedures are followed in practice

Receptionist prosecuted for breaching the Data Protection Act

Another nosy parker faces the results of their snooping after she decided to spy on her ex-husband’s new wife.

The GP receptionist at a Southampton surgery was prosecuted by the UK’s Information Commissioner’s Office (ICO) for unlawfully obtaining sensitive medical records.

The ICO reported on the 12th March 2013 that Marcia Phillips was prosecuted under section 55 of the Data Protection Act and fined £750 and ordered to pay a £15 victim surcharge and £400 prosecution costs.

Ms Phillips was found to have accessed the information on 15 separate occasions over a 16-month period while working as a receptionist at the Bath Lodge Practice. The breach became apparent after Phillips left her job and sent a text message to her ex-husband’s partner referring to highly sensitive medical information taken from her medical record.

Deputy Commissioner and Director of Data Protection, David Smith, said:

This case clearly shows the distress that can be caused when an individual uses a position of responsibility to illegally access sensitive personal information. Ms Phillips knew she was breaking the law, but continued to do so in order to cause harm to her ex-husband’s new wife.

“The nature of her job meant that she will have been in no doubt as to the importance of patient confidentiality. Despite this she repeatedly accessed the victim’s file without a valid reason

Unlawfully obtaining or accessing personal data is a criminal offence under section 55 of the Data Protection Act 1998. The offence is punishable by way of a fine of up to £5,000 in a Magistrates Court or an unlimited fine in a Crown Court. The ICO continues to call for more effective deterrent sentences, including the threat of prison, to be available to the courts to stop the unlawful use of personal information.

David Smith added:

We continue to urge the Government to press ahead with the introduction of tougher penalties to enforce the Data Protection Act. Without these unscrupulous individuals will continue to break the law. Action to replace the section 55 ‘fine only’ regime with an effective deterrent is long overdue. This change is not directed at the media and should not be held while Lord Justice Leveson‘s recommendations on data protection and the media are considered


Lack of guidance on BYOD raises data protection concerns

The UK Information Commissioner’s Office (ICO) has commissioned a survey into business attitudes towards Bring Your Own Device (BYOD).

The survey results shown many employers appear to have a ‘laissez faire’ attitude to allowing staff to use their personal laptop, tablets or smartphone for at work and for work business, which may be placing people’s personal information at risk.

The survey, carried out by YouGov, reveals that 47% of all UK adults now use their personal smartphone, laptop or tablet computer for work purposes. But less than 3 in 10 who do so are provided with guidance on how their devices should be used in this capacity, raising worrying concerns that people may not understand how to look after the personal information accessed and stored on these devices.

Simon Rice, Group Manager (Technology), said:

The rise of smartphones and tablet devices means that many of the common daily tasks we would have previously carried out on the office computer can now be worked on remotely. While these changes offer significant benefits to organisations, employers must have adequate controls in place to make sure this information is kept secure.

“The cost of introducing these controls can range from being relatively modest to quite significant, depending on the type of processing being considered, and might even be greater than the initial savings expected. Certainly the sum will pale into insignificance when you consider the reputational damage caused by a serious data breach. This is why organisations must act now.

“Our guidance aims to help organisations develop their own policies by highlighting the issues they must consider. For example, does the organisation know where personal data is being stored at any one time? Do they have measures in place to keep the information accurate and up-to-date? Is there a failsafe system so that the device can be wiped remotely if lost or stolen?

Today’s guidance from the ICO explains how organisations need to be clear on the types of personal data that can be processed on personal devices and have remote locate and wipe facilities in place so the confidentiality of the data can be maintained in the event of a loss or theft.

Key recommendations from the ICO’s guidance:

  • Be clear with staff about which types of personal data may be processed on personal devices and which may not
  • Use a strong password to secure your devices
  • Enable encryption to store data on the device securely
  • Ensure that access to the device is locked or data automaticaly deleted if an incorrect password is input too many times
  • Use public cloud-based sharing and public backup services, which you have not fully assessed, with extreme caution, if at all
  • Register devices with a remote locate and wipe facility to maintain confidentiality of the data in the event of a loss or theft

The survey results below shows that email is the most common work activity carried out on a personal device (55%) which consider what information can be in the body of an email or attached leaves an organisations open to many commercial, legislative and regulatory risks for example PCI DSS compliance.

All UK Adults online who use a smartphone, laptop or a tablet PC for work purposes access usage
Work email


Accessing work files


Storage   of work documents and work files


Social networking (e.g. LinkedIn, Twitter, Facebook) for work


Editing work documents


Uploading   work information to a website


Work video chat (e.g. skype etc.)


Work related applications (Apps)


Work related online banking


Work related shopping


Work related web browsing




None of these


Nursing and Midwifery Council fined for breaching the Data Protection Act

The Information Commissioner’s Office has issued a £150,000 fine to the Nursing and Midwifery Council was for breaching the Data Protection Act. 

The Nursing and Midwifery Council lost three DVDs related to a nurse’s misconduct hearing, which contained confidential personal information and evidence from two vulnerable children. 

In October 2011 the DVDs, containing confidential information, was sent to a misconduct hearing via a courier and when the package arrived at the hearing the DVDs were missing and have never found 

After an investigation by the ICO it was found the information was not encrypted. 

David Smith, Deputy Commissioner and Director of Data Protection, said:

It would be nice to think that data breaches of this type are rare, but we’re seeing incidents of personal data being mishandled again and again. While many organisations are aware of the need to keep sensitive paper records secure, they forget that personal data comes in many forms, including audio and video images, all of which must be adequately protected. 

I would urge organisations to take the time today to check their policy on how personal information is handled. Is the policy robust? Does it cover audio and video files containing personal information? And is it being followed in every case? 

If the answer to any of those questions is no, then the organisation risks a data breach that damages public trust and a possible weighty monetary penalty.

The council had been couriering evidence relating to a ‘fitness to practise’ case to the hearing venue. When the packages were received the discs were not present, though the packages showed no signs of tampering. Following the security breach the council carried out extensive searches to find the DVDs, but they’ve never been recovered. 

The Nursing and Midwifery Council’s underlying failure to ensure these discs were encrypted placed sensitive personal information at unnecessary risk. No policy appeared to exist on how the discs should be handled, and so no thought was given as to whether they should be encrypted before being couriered. Had that simple step been taken, the information would have remained secure and we would not have had to issue this penalty.


2013 looks like being a bigger year than 2012 as the ICO starts catching up with the backlog of breaches

2013 has started as 2012 finished off with UK Information Commissioner (ICO) coming down hard on those who breach the Data Protection Act.

So far this January 3 organisations have fallen foul of the ICO:

  1. Sony Computer Entertainment Europe Limited
  2. Mansfield District Council
  3. Prospect Trade Union

Sony Computer Entertainment Europe Limited

Sony Computer Entertainment Europe Limited fined £250,000 after the April 2011 hacking of the Sony PlayStation Network Platform (PSN). That breach resulted in millions of Sony customers having their data stolen including:

  • Names
  • Addresses
  • Email addresses
  • Dates of birth
  • Account passwords
  • Customers’ payment card details were also at risk.

David Smith, Deputy Commissioner and Director of Data Protection, said:

“If you are responsible for so many payment card details and log-in details then keeping that personal data secure has to be your priority. In this case that just didn’t happen, and when the database was targeted – albeit in a determined criminal attack – the security measures in place were simply not good enough.

“There’s no disguising that this is a business that should have known better. It is a company that trades on its technical expertise, and there’s no doubt in my mind that they had access to both the technical knowledge and the resources to keep this information safe.

“The penalty we’ve issued today is clearly substantial, but we make no apologies for that. The case is one of the most serious ever reported to us. It directly affected a huge number of consumers, and at the very least put them at risk of identity theft.

“If there’s any bright side to this it’s that a PR Week poll shortly after the breach found the case had left 77 per cent of consumers more cautious about giving their personal details to other websites. Companies certainly need to get their act together but we all need to be careful about who we disclose our personal information to.”

Mansfield District Council. The council had several incidents of housing benefit claimants personal data being disclosed to the wrong landlord. The ICO has issued a formal undertaking to Mansfield District Council.

Prospect Trade Union. Prospect unfortunately sent two files containing personal details of approximately 19,000 members of the union to an unknown third party email address in error. The ICO has issued a formal undertaking to Prospect.

Both Prospect and Mansfield District Council have agreed “Formal Undertaking”. An undertaking is a detailed and document agreement between the ICO and the organisation that breached the Data Protection Act, specifically how those that have breached the Act will improve their Data Protection regime.

The Sony hack was widely reporting and was a result of an external attack whilst the other two, Prospect and Mansfield District Council were both the result of avoidable human error.

Want to know who was caught in 2012? Read my post 2012 was a big year for the Data Protection Act with record fines and breaches, see the full 2012 list here.

Information Commissioner publishes guidance on cloud computing

The UK’s Information Commissioner’s Office (ICO) has published guidelines to on how business treat personal information in the cloud whether that is a private or public cloud.

The data protection regulator ICO is concerned that many businesses do not realise they remain responsible for how the data is handled whilst it is in the cloud.

This has resulted in the ICO publishing a guide to cloud computing, to help businesses comply with the law.

The guide gives tips including:

  • Seek assurances on how your data will be kept safe. How secure is the cloud network, and what systems are in place to stop someone hacking in or disrupting your access to the data?
  • Think about the physical security of the cloud provider. Your data will be stored on a server in a data centre, which needs to have sufficient security in place.
  • Have a written contract in place with the cloud provider. This is a legal requirement, and means the cloud provider will not be able to change the terms of the service without your agreement.
  • Put a policy in place to make clear the expectations you have of the cloud provider. This is key where services are funded through adverts targeted at your customers: if they’re using personal data and you haven’t asked your customers’ permission, you’re breaking data protection law.
  • Don’t forget that transferring data internationally brings a number of obligations – that includes using cloud storage based abroad.

Speaking as the guide was launched, author Dr Simon Rice, ICO technology policy advisor, said:

“The law on outsourcing data is very clear. As a business, you are responsible for keeping your data safe. You can outsource some of the processing of that data, as happens with cloud computing, but how that data is used and protected remains your responsibility.

“It would be naïve for an organisation to take the attitude that these guidelines are too much effort to simply store some data in a different place. Where personal information is involved, the stakes are high and the ICO has already demonstrated it will act firmly against those who don’t meet data protection laws”


Data Protection Advice for schools and just about everyone else

The UK Information Commissioner’s Office has released a report which gives practical advice on how to comply with the Data Protection Act.

The advice was prompted by a survey of 400 schools across nine local authority areas that showed that whilst awareness of data protection laws was generally good, schools need to pay more attention to complying with data protection law.

The survey showed 95% of schools provided some information to pupils and parents about what was done with personal information.

A third of schools with password-protected computer systems conceded the passwords were not necessarily strong enough and not changed regularly, with 20% admitting email systems were not secure.

Louise Byers, ICO Head of Good Practice, helped draft the report: “The survey results showed that whilst awareness of the law was broadly good, knowledge on how to comply with it wasn’t always there. In many respects that should come as no surprise – it’s not teachers’ area of expertise – and it is precisely what our report is aiming to address.

“I’d urge teachers and heads to take a look at our recommendations and make sure they’re complying with the law. The sensitive personal data that schools handle means it is crucial they get this right, and we hope the ICO’s report will help them achieve that.”

A summary of the main recommendations is below:

  • Notification. Make sure you notify the Information Commissioner of the purposes for your processing of personal data
  • Personal data. Recognise the need to handle personal information in line with the data protection principles
  • Fair processing. Let pupils and staff know what you do with the personal information you record about them. Make sure you restrict access to personal information to those who need it
  • Security. Keep confidential information secure when storing it, using it and sharing it with others
  • Disposal. When disposing of records and equipment, make sure personal information cannot be retrieved from them
  • Policies. Have clear, practical policies and procedures on information governance for staff and governors to follow, and monitor their operation
  • Subject access requests. Recognise, log and monitor subject access requests
  • Data sharing. Be sure you are allowed to share information with others and make sure it is kept secure when shared
  • Websites. Control access to any restricted area. Make sure you are allowed to publish any personal information (including images) on your website
  • CCTV. Inform people what it is used for and review retention periods
  • Photographs. If your school takes photos for publication, mention your intentions in your fair processing/privacy notice
  • Processing by others. Recognise when others are processing personal information for you and make sure they do it securely
  • Training . Train staff and governors in the basics of information governance; recognise where the law and good practice need to be considered; and know where to turn for further advice
  • Freedom of information (FOI)/ After consultation, notify staff what personal information you would provide about them when answering FOI requests.

Find the full report here.


Rubbish causes a breach of the Data Protection Act and a £250,000 fine

Scottish Borders Council employed an outside company to digitise their employee records but when the pension records of several hundred ex-employees were found in recycling bins the Information Commission’s Office began an investigation for a breach of the Data Protection Act.

Following the investigation the Information Commissioner has fined the Council £250,000 for not seeking appropriate guarantees on how the personal data would be kept secured and dealt with.

It is believed more than 600 files were deposited at the recycle bins, containing confidential information and, in a significant number of cases, salary and bank account details. The files were spotted by a member of the public who called police, prompting the recovery of 676 files. A further 172 files deposited on the same day but at a different paper recycling bank are thought to have been destroyed in the recycling process.

Ken Macdonald, ICO Assistant Commissioner for Scotland, said:

“This is a classic case of an organisation taking its eye off the ball when it came to outsourcing. When the Council decided to contract out the digitising of these records, they handed large volumes of confidential information to an outside company without performing sufficient checks on how securely the information would be kept, and without even putting a contract in place.

“It is only good fortune that these records were found by someone sensible enough to call the police. It is easy to imagine other circumstances where this information could have exposed people to identity fraud and possible financial loss through no fault of their own.

“If one positive can come out of this, it is that other organisations realise the importance of properly managing third parties who process personal data. The Data Protection Act is very clear where the responsibility for the security of that information remains, and what penalties await those who do not comply with the law.”

Who else has the information commissioner caught this year? Find out here.


65% of businesses do not protect their customers’ private data

According to a survey by GreenSQL more than 65% of businesses do not protect their customers’ private data from unauthorised employees and consultants.

The results are interesting because every day we hear of another data breach or another form of malware which can steal data or at least damage data and you would think that with this amount of coverage business would sit up and start protecting their livelihood because that is what customer information is, their livelihood.

For an idea of the scale of the UK’s problem have a look at my post “Who has breached the Data Protection Act in 2012? Find the complete list here“.

Maybe it is bad news fatigue? Maybe the constant flow of horror stories makes them think that they cannot do anything about it so why bother.

I can understand the sentiment because on a personal level I do not wear a Kevlar jacket and carry pepper spray when I walk my dogs on a cold dark winter evening on the distant chance I might be mugged.

However, business cannot escape their contractual commitment to protect credit card data under the Payment Card Industry’s Data Security Standards (PCI DSS) and they cannot escape the legislative requirements to protect Personally identifiable Information (PII) for example the Data Protection Act and the pending European Wide Data Protection Act.

The survey results fall into three categories

  1. Ignore. 65% take no preventative measures
  2. Think about it. 23% use masking techniques only in non-production environments, such as dummy data and scrambling
  3. Try. 12% deploy dynamic data masking solutions on their production environments

I suspect that those who indicated that they deploy technologies to mask data are talking about credit card data where all payment applications are governed by the Payment Card Industry’s PA DSS but it should be applied to all sensitive data that could cause financial or reputational damage to anyone; customer, employee or contractor.

“Most companies would say protecting customer data is critical to maintaining their business and reputation,” said GreenSQL CEO, Amir Sadeh. “However, something is wrong when we discover that many IT departments are making no masking efforts whatsoever, and others are taking tepid approaches.”

GreenSQL surveyed “hundreds of IT managers and developers at large organizations” about the measures they took to prevent developers, QA, DBAs, consultants, outsourced employees, suppliers and application users from having access to sensitive data.

In summary adding protection to data bases and sensitive data is not hard and with current market trends moving towards cloud based solutions the costs are no longer prohibitive compared to becoming one of those horror stories people keep ignoring.


Who has breached the Data Protection Act in 2012? Find the complete list here.

So far 2012 has been a busy year for the Information Commissioners Office (ICO) and with almost three quarters of the year gone I thought I would look at who has fallen foul of the Data Protection Act.

There are normally three types of punishments administered by the ICO

  1. Monetary. The most serious of the actions and one normally reserved for organisational entities.
  2. Undertaking. Typically applied when an organisation has failed to adhere to good business practise and needs the helping guidance of the ICO
  3. Prosecutions. Normally reserved for individuals who have blatantly breached the Act.

In the near future I expect the proposed revised and consolidated European wide Data Protection Act to lead to more activity by the ICO, in the UK and across the other 27 member states. Read my summary of the propose European Data Protection Act here.

Below is a summary of the ICO’s activity in 2012 across all three “punishment” areas.

Monetary penalty notices

A monetary penalty will only be served in the most serious situations. When deciding the size of a monetary penalty, the ICO takes into account the seriousness of the breach and other factors like the size, financial and other resources of an organisation’s data controller. The ICO can impose a penalty of up to £500,000. It is worth noting that monetary penalties are to HM Treasury.

  • 6 August 2012 A monetary penalty of £175,000 was issued to Torbay Care Trust after sensitive personal information relating to 1,373 employees was published on the Trust’s website. Read the details here.
  • 12 July 2012 A monetary penalty of £60,000 was issued to St George’s Healthcare NHS Trust after a vulnerable individual’s sensitive medical details were sent to the wrong address.
  • 5 July 2012 A monetary penalty notice of £150,000 has been served to Welcome Financial Services Limited following a serious breach of the Data Protection Act. The breach led to the personal data of more than half a million customers being lost.
  • 19 June 2012 A monetary penalty notice of £225,000 has been served to Belfast Health and Social Care Trust following a serious breach of the Data Protection Act. The breach led to the sensitive personal data of thousands of patients and staff being compromised. The Trust also failed to report the incident to the ICO.
  • 6 June 2012 A monetary penalty for £90,000 has been served to Telford & Wrekin Council for two serious breaches of the seventh data protection principle. A Social Worker sent a core assessment report to the child’s sibling instead of the mother. The assessment contained confidential and highly sensitive personal data. Whilst investigating the first incident, a second incident was reported to the ICO involving the inappropriate disclosure of foster carer names and addresses to the children’s mother. Both children had to be re-homed.
  • 1 June 2012 A monetary penalty notice for £325,000 has been served on Brighton and Sussex University Hospitals NHS Trust following the discovery of highly sensitive personal data belonging to tens of thousands of patients and staff – including some relating to HIV and Genito Urinary Medicine patients – on hard drives sold on an Internet auction site in October and November 2010. Read the details here.
  • 21 May 2012 A monetary penalty notice for £90,000 has been served on Central London Community Healthcare NHS Trust for a serious contravention of the DPA, which occurred when sensitive personal data was faxed to an incorrect and unidentified number. The contravention was repeated on 45 occasions over a number of weeks and compromised 59 data subjects’ personal data. Read the details here.
  • 15 May 2012 A monetary penalty of £70,000 was issued to the London Borough of Barnet following the loss of sensitive information relating to 15 vulnerable children or young people, during a burglary at an employee’s home. Read the details here.
  • 30 April 2012 A monetary penalty of £70,000 has been issued to the Aneurin Bevan Health Board following an incident where a sensitive report containing explicit details relating to a patient’s health – was sent to the wrong person. Read the details here.
  • 14 March 2012 A monetary penalty of £70,000 was issued to Lancashire Constabulary following the discovery of a missing person’s report containing sensitive personal information about a missing 15 year old girl. Read the details here.
  • 15 February 2012 A monetary penalty of £80,000 has been issued to Cheshire East Council after an email containing sensitive personal information about an individual of concern to the police was distributed to 180 unintended recipients. Read the details here.
  • 13 February 2012 A monetary penalty of £100,000 has been issued to Croydon Council after a bag containing papers relating to the care of a child sex abuse victim was stolen from a London pub. View a PDF of the Croydon Council monetary penalty notice
  • 13 February 2012 A monetary penalty of £80,000 has been issued to Norfolk County Council for disclosing information about allegations against a parent and the welfare of their child to the wrong recipient.
  • 30 January 2012 A monetary penalty of £140,000 was issued to Midlothian Council for disclosing sensitive personal data relating to children and their carers to the wrong recipients on five separate occasions. The penalty is the first that the ICO has served against an organisation in Scotland. Read the details here.


Undertakings are formal agreements between an organisation and the ICO to undertake certain actions to avoid future breaches of the Data Protection Act, typically this involves, Encryption, Training and Management Procedures.

  • 6 August 2012 An undertaking to comply with the seventh data protection principle has been signed by Marston Properties. This follows the loss of 37 staff members’ details when the filing cabinet the information was stored in was sent to a recycling centre and crushed.
  • 13 July 2012 An undertaking to comply with the seventh data protection principle has been signed by West Lancashire Borough Council. This follows the theft of a business continuity bag containing emergency response documents and personal data relating to 370 council employees.
  • 26 June 2012 An undertaking to comply with the seventh data protection principle has been signed by South Yorkshire Police. This follows the inclusion of personal data relating to drug offences, in response to a Freedom of Information request made by a journalist.
  • 23 May 2012 An undertaking to comply with the seventh data protection principle has been signed by Holroyd Howe Independent Ltd. This follows the release of a document containing details of employees’ pay to a former employee.
  • 30 April 2012 An undertaking to comply with the seventh data protection principle has been signed by the Aneurin Bevan Health Board. This follows an incident where a sensitive report – containing explicit details relating to a patient’s health – was sent to the wrong person. This breach was also the subject of a monetary penalty.
  • 25 April 2012 An undertaking to comply with the seventh data protection principle has been signed by Safe and Secure Insurances Services Limited. This follows the purchase of a hard drive from the Internet which contained personal data relating to the company’s clients.
  • 18 April 2012 An Undertaking to comply with the seventh data protection principle has been signed by Brecon Beacons National Park Authority. This follows two data security incidents which relate to the unauthorised disclosure of personal data on the data controller’s website.
  • 17 April 2012 An undertaking to comply with the seventh data protection principle has been signed by Leicestershire County Council, following the theft of a briefcase containing sensitive personal data from a social worker’s home.
  • 17 April 2012 An undertaking to comply with the seventh data protection principle has been signed by Toshiba Information Systems UK Ltd. This follows a web design error that created the potential for unauthorised access to individual’s personal data.
  • 11 April 2012 An undertaking to comply with the seventh data protection principle has been signed by Hertfordshire County Council. This follows the loss of an Attendance and Pupil Support consultation folder in January 2011.
  • 11 April 2012 An undertaking to comply with the seventh data protection principle has been signed by South London Healthcare NHS Trust. This follows the loss of two unencrypted memory sticks, the leaving of a clipboard with ward lists attached in a grocery store and a failure to adequately secure some patient paper files when not in use. All of the information was recovered.
  • 27 March 2012 An Undertaking has been signed by Pharmacyrepublic Ltd following the theft of a patient medication system containing the medication details of 2000 patients. The system, which was supplied by another firm, should have been securely returned to them by Pharmacyrepublic Ltd before the premises were vacated. Read the details here.
  • 14 March 2012 An undertaking to comply with the seventh data protection principle has been signed by the Lancashire Constabulary. This follows the discovery of a missing person’s report on a street in Blackpool. A monetary penalty has also been issued to the authority in connection with this incident.
  • 9 March 2012 An undertaking to comply with the seventh data protection principle has been signed by Enable Scotland (Leading the Way), after two unencrypted memory sticks and papers containing the personal details of up to 101 individuals were stolen from an employee’s home.
  • 1 March 2012 An undertaking to comply with the seventh data protection principle has been signed by Community Integrated Care, a national social care charity. This follows the theft of an unencrypted laptop containing personal and sensitive personal data.
  • 1 March 2012 An Undertaking to comply with the seventh data protection principle has been signed by Durham University. This follows the disclosure of personal information in training materials published on its website.
  • 1 March 2012 An Undertaking to comply with the seventh data protection principle has been signed by London Borough of Croydon. This follows the theft of a bag belonging to a social worker from a public house in London. The bag contained a hard copy file of papers concerning a child who is in the care of the Council. This incident was also subject to a monetary penalty which was announced earlier this month.
  • 1 March 2012 An undertaking to comply with the seventh data protection principle has been signed by Dr Pervinder Sanghera of Arthur House Dental Care. This follows the discovery of an unencrypted memory stick containing personal and limited sensitive personal data relating to patients and employees of the practice.
  • 10 February 2012 Youth charity Fairbridge has signed an undertaking committing the organisation to taking action after the loss of two unencrypted laptops containing employee information.
  • 10 February 2012 Healthcare provider Turning Point has signed an undertaking committing the organisation to take action after the loss of three service users’ files during an office relation.
  • 10 February 2012 Five local authorities have signed undertakings to comply with the seventh data protection principle, following incidents where the councils failed to take appropriate steps to ensure that personal information was kept secure.
  • 10 February 2012 Basingstoke and Deane Borough Council breached the Data Protection Act on four separate occasions during a two month period last year. The breaches included an incident in May when an individual was mistakenly sent information relating to 29 people who were living in supported housing.
  • 10 February 2012 Brighton and Hove Council emailed the details of another member of staff’s annual salary – and the deductions made from this – to 2,821 council workers. A third party also informed the ICO of a historic breach which occurred in May 2009 when an unencrypted laptop was stolen from the home of a temporary employee.
  • 10 February 2012 Undertakings have been signed by • Dacorum Borough Council • Bolton Council • Craven District Council
  • 3 February 2012 An undertaking to comply with the seventh data protection principle has been signed by E*Trade Securities Ltd. This follows a report to the Commissioner concerning missing client files. The files contained limited sensitive personal data including identification documents.
  • 20 January 2012 An undertaking has been signed by Manpower UK Ltd following a breach of the Data Protection Act where a spreadsheet containing 400 people’s personal details was accidentally emailed to 60 employees.
  • 18 January 2012 An undertaking has been signed by the Chartered Institute of Public Relations, following the loss of up to 30 membership forms on a train. The organisation didn’t have a policy in place for handling personal data outside of the office at the time of the incident.
  • 18 January 2012 Praxis Care Limited breached both the UK Data Protection Act and the Isle of Man Data Protection Act by failing to keep peoples’ data secure. An unencrypted memory stick, containing personal information relating to 107 Isle of Man residents and 53 individuals from Northern Ireland, was lost on the Isle of Man.


  • 2 August 2012. Mohammed Ali Enayet, owner of The Lime Lounge in Cleveleys has been prosecuted by the ICO for failing to register his premises’ use of CCTV equipment.
  • 30 March 2012. SAI Property Investments Limited, trading as IPS Property Services and one of its directors Mr Punjab Sandhu unlawfully obtained details about their tenants from a rogue employee at Slough Borough Council have been found guilty of committing offences under Section 55 of the Data Protection Act 1998 (DPA).
  • 27 February 2012. Pinchas Braun, a letting agent who unlawfully tried to obtain details about a tenant’s finances from the DWP has been found guilty of an attempt to commit an offence under section 55 of the Data Protection Act and the Criminal Attempts Act.
  • 12 January 2012. Juliah Kechil, formerly known as Merritt, a former health worker has pleaded guilty to unlawfully obtaining patient information by accessing the medical records of five members of her ex-husband’s family in order to obtain their new telephone numbers.

The ICO is not just an enforcer, he offers advice too The Information Commissioner’s 5 Tips on how to better protect personal information .

The list was compiled on the 16th August 2012, updates will be added later so why not subscribe to the blog and automatically get the updates.


See Who breached the Data Protection Act in 2013? Find the complete list here.

The Information Commissioner’s 5 Tips on how to better protect personal information

The UK’s Information Commissioners office has created a list of 5 useful tips for protecting personally identifiable information (PII).

The list comes on the back of an offer by the ICO to help charities and other third sector organisations to help them protect data and avoid potential fines of up to £500,000.

Louise Byers, Head of Good Practice at the ICO, said:

“We are aware that charities are often handling extremely sensitive information relating to the health and wellbeing of vulnerable people. With these organisations often lacking the money to employ dedicated information governance staff, there’s a danger that many charities may be struggling to look after people’s data.

“We have published today’s top five areas for improvement to show the voluntary and charity sector that good data protection practices can be cheap and easy to introduce, providing they have the right help and support.

“A one day advisory visit from the ICO provides charities with a data protection ‘check up’ and practical advice on how they can look after people’s information. We are now calling on these organisations to use the summer period to check that their data protection practices are adequate and get in touch before it is too late.”

Sam Younger, Chief Executive of the Charity Commission said:

“Trustees are responsible for ensuring their charity complies with relevant legislation – including the Data Protection Act – and for protecting their charity’s reputation. Mishandling sensitive data not only causes individuals serious distress, it can also damage the good name of your charity. So I encourage trustees of charities that handle sensitive data to take note of the ICO’s guidance and consider taking part in an ICO advisory visit.”

The ICO’s top five areas for improvement are:

  1. Tell people what you are doing with their data. People should know what you are doing with their information and who it will be shared with. This is a legal requirement (as well as established best practice) so it is important you are open and honest with people about how their data will be used.
  2. Make sure your staff are adequately trained. New employees must receive data protection training to explain how they should store and handle personal information. Refresher training should be provided at regular intervals for existing staff.
  3. Use strong passwords. There is no point protecting the personal information you hold with a password if that password is easy to guess. All passwords should contain upper and lower case letters, a number and ideally a symbol. This will help to keep your information secure from would-be thieves.
  4. Encrypt all portable devices. Make sure all portable devices – such as memory sticks and laptops – used to store personal information are encrypted.
  5. Only keep people’s information for as long as necessary. Make sure your organisation has established retention periods in place and set up a process for deleting personal information once it is no longer required.

I would like to add that whilst these tips are useful most businesses, especially charities, should review their requirements under the Payment Card Industry Data Security Standard (PCI DSS) as credit cards are the life blood to most organisations.


Torbay Care Trust (NHS) fined £175,000 for breaching the Data Protection Act

Torbay Care Trust in Torquay has been fined £175,000 after it published the sensitive details of over 1,000 employees on the Trust’s website.

Staff at the Trust published the information in a spreadsheet on their website in April 2011 and only realised when a member of the public reported it 19 weeks later.

The data covered the equality and diversity responses of 1,373 staff and included individuals’ names:-

  • Dates of birth
  • National Insurance numbers
  • Religion
  • Sexuality

The Information Commissioners Office’s investigation found that the Trust had no guidance for staff on what information shouldn’t be published online and had inadequate checks in place to identify potential problems.

Stephen Eckersley, Head of Enforcement, said:

“We regular speak with organisations across the health service to remind them of the need to look after people’s data. The fact that this breach was caused by Torbay Care Trust publishing sensitive information about their staff is extremely troubling and was entirely avoidable. Not only were they giving sensitive information out about their employees but they were also leaving them exposed to the threat of identity fraud.

“While organisations can publish equality and diversity information about staff in an aggregated form, there is no justification for unnecessarily releasing their personal information. We are pleased that the Trust are now taking action to keep their employees’ details secure.”

With the proposed European Data Protection Act the scope of what is classified as Personally Identifiable Information (PII) will be better defined but will include more than most business think is actually covered.

It is time businesses undertook thorough risk assessments of their exposure to the PII data leakages because the proposed new fines are potentially up to 2% of global turnover.

Read my summary of the proposed European Data Protection Act here.


Consumers express their opinions of Data Breach Notifications

Ponemon Institute have released an Experian® Data Breach Resolution sponsored survey into what consumer think about Data Breach Notifications, titled 2012 Consumer Study on Data Breach Notifications.

I have made a summary of the survey below.

Consumers in the Ponemon and Experian joint study believe data breach notification is important under certain conditions

  • 85% believe notification about data breach and the loss or theft of their personal information is relevant to them
  • 57% say that they want to be informed only if the organization is certain that they are at risk
  • 58% say that if they remembered the notification it failed to explain all the facts and “sugar coated” the message

The trustworthiness of an organization is linked to the efforts it makes to protect personal information

  • 83% of respondents believe organizations that fail to protect their personal information are untrustworthy
  • 82% believe the privacy and security of their personal information is important

Following a data breach, consumers believe organizations have obligations to provide compensation and protect them from identity theft

  • 63% say organizations should be obligated to compensate data breach victims with cash, their products or services
  • 59% believe a data breach notification means there is a high probability they will become an identity theft victim. As a result, 58% say the organization has an obligation to provide identity protection services and 55% say they should provide credit-monitoring services.

Most consumers recall receiving a form letter and more than one notification

  • 65% of consumers say they have received at least one notification
  • 35% recall receiving at least three In 2005, 91% said they received only one
  • 62% of consumers say the notification was a form letter 19% who say it was a personal letter.

Most consumers do not believe the organizations that sent them notifications did a good job in communicating and handling the data breach

  • 72% of consumers were disappointed in the way the notification was handled
  • 28% say the organization did a good job in communicating and handling the data breach

A key reason for the disappointment is respondents’ belief that the notification did not increase their understanding about the data breach. In fact, since 2005 respondents are more in the dark about what happened with their data.

  • 41% of respondent say their data was most likely stolen
  • 37% say they have no idea what the data breach incident was about
  • This is an increase from 37% in 2005 who said their data was most likely stolen and 28% of consumers who said they had no idea what the data breach incident was about
  • 51% say their customer or consumer information was stolen
  • 21% who say it was their financial information such as credit card/debit card account numbers
  • In 2005 86% said it was their customer or consumer information 10% said it was employee records
  • 44% of consumers do not know the specific data that was lost or stolen which makes it more difficult for them to take steps to protect themselves from further harm. Those who do know say the following were most likely to have been lost or stolen: name, credit card or bank payment information and Social Security number.

Personal data respondents worry most about if lost or stolen

  • 48% Email address
  • 48% Health plan provider account number
  • 48% Taxpayer ID number/Employer ID number
  • 52% Telephone or mobile number
  • 53% Driver’s license number
  • 57% Credit or payment history
  • 65% Credit card or bank payment information
  • 65% Prescriptions
  • 68% Social media accounts/handles
  • 89% Social Security number
  • 92% Password/PIN

Consumers say key facts about the breach are missing in most communications. 67% say the notification did not provide enough details about data breach.

The majority of consumers (51%) would like to have more information about how the organization will protect them to minimize the harm to them and their family. This is consistent with the 2005 study.

How the data breach may affect them and their family decreased significantly from 40% of respondents in 2005 to 24% this year. Identity protection or credit monitoring services and steps to take to protect their personal information were included for the first time in this year’s study and were significantly lower than the first choice about protections to minimize the possible negative consequences of a data breach.

Notification letters are increasingly perceived to be junk mail, according to many consumers

  • 36% say they thought the data breach notification letter looked like junk mail This is an increase from 15% in 2005
  • 34% say it was an important communication, this is a significant decrease from 51% in 2005

If they thought it looked like junk mail

  • 63% of respondents recommend that the notification provide the names of individuals they can contact if they have questions or concerns
  • 54% say the notification should be personalized
  • 50% suggest making a phone call or email alerting them to the notification

Customer loyalty is at risk following notification. In response to being notified by an organization

  • 15% say they will terminate their relationship
  • 39% say they will consider ending the relationship
  • 35% say their relationship and loyalty is dependent upon the organization not having another data breach

Only a small percentage of respondents in both studies do not blame the organization reporting the data breach. Further, respondents’ reactions to a breach have not changed significantly in the past seven years.

As in the previous finding, data breaches diminish customer loyalty and trust and this has not changed much since 2005. The study reveals that 62% say the notification decreased their trust and confidence in the organization Only 30% say it had no affect on their trust and confidence.

Since 2005, data breach notifications have not become easier to understand with 61% of consumers have problems understanding the notification An increase from 52% in 2005.

The biggest improvements that could be made would be to explain the risks or harms that they are most likely to experience as a result of the breach and to disclose all the facts.

The believability of data breach notifications has declined

  • In 2005, 61% say the message was believable
  • This has decreased to 55% in 2012

Scepticism about the content of the notification has increased since 2005. Of the 45% who say it was not believable, 51% say the message did not tell them about the harms or risks they will likely experience. This is an increase from 37% who believed this in 2005. In addition, perceptions that the organization is hiding key facts about the data breach have increased from 37% to 44%,

Respondents are just as worried today as they were in 2005 about the security of their personal information

  • 63% are more worried about the security of their personal information
  • 44% say they have had to spend time resolving problems as a result of the breach
  • Despite concerns about identity theft and other harms, almost half (49%) are doing nothing to protect themselves

Consumers are, however, more cautious about sharing personal information with the organization that had the breach (45%) and 35% are more cautious about sharing information with all organizations.

Ponemon’s Conclusion

Consumers in our study believe the privacy and security of their personal information is important. Organizations that do not provide adequate safeguards are considered untrustworthy. Further, typical responses to a data breach notification are to immediately discontinue the relationship with the organization that had the breach, to consider discontinuing the relationship or to continue the relationship only as long as another breach does not occur.

One of the goals of this research is to determine if consumers’ perceptions about data breach notification have changed since 2005 when we conducted the first study about this topic. Based on the findings, improvements need to be made to both how the notifications are delivered and the information that is communicated to victims of the data breach.

These include

  • Making the notification easier to understand by making it shorter with less legalese
  • Eliminating the perception that the notification is junk mail by providing names that can be contacted if there are questions or concerns, personalizing the message and making a phone call or sending an email in advance of sending the notification
  • Providing specifics about the incident that explain the cause of the breach and the type of data that was lost or stolen so the victim understands what the data breach is all about
  • Assuring the victims that the organization will take steps to protect them from identity theft and other negative consequences

Most of the consumers who responded to the survey cannot recall if they received notification. We conclude that despite their concern about privacy and security, consumers are not paying attention to the notices. They also are not being proactive about preventing identity theft following notification. Instead, they believe it is the obligation of the organization to fully explain the potential harms they are likely to experience and to take steps to reduce the risk of identity theft.

In many instances, when organizations have a data breach the notification process is a matter of sending out a form letter. As shown in this study, communicating the circumstances of the data breach can influence customer loyalty, trustworthiness and reputation. Resources spent on personalizing the message, offering assistance to reduce the likelihood of identity theft and future harms and providing specific information about the incident may help organizations avoid the risk of losing customer trust and loyalty in the aftermath of the data breach.

Read the full report by registering here.

With Breach Notifications to be mandatory in the not so distant future it would be worth reading my review of the proposed European Data Protection Act here.

Information Commissioner’s Office consults on new anonymisation code of practice

The Information Commissioner’s Office (ICO) has begun a public consultation on a new anonymisationcode of practice.

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The code will provide guidance on how information can be successfully anonymised and how to assess the risks of identification. The ICO has also launched a tendering process to establish a network of experts to share best practice around the release of data in an anonymised form.

Anonymisation techniques can convert personal data into a form so that individuals are no longer identifiable. The consultation will be relevant to any organisation that wants to release anonymised data, for example under the government’s open data agenda.

Christopher Graham, Information Commissioner said:

“The UK is putting more and more valuable data into the public domain. The open data agenda will see this process continue and I welcome the power this information gives the average UK citizen to understand how the public sector operates and hold organisations to account.

“However, while the public wants to see openness, they want to see their privacy rights respected too. The risks of anonymisation can sometimes be underestimated and in other cases overstated; organisations need to be aware of what those risks are and take a structured approach to assessing them, particularly in light of other personal information in the public domain.

“Anonymisation can allow organisations to publish or share useful information derived from personal data, whilst protecting the privacy rights of individuals. Our code will aim to provide clear, practical advice on how data can be anonymised. We are now inviting individuals and organisations to submit their views on how this can best be achieved.”

The consultation will play an important role in making sure that the new code achieves the right balance between the protection of individuals’ privacy and the benefits of making information publicly available.

The consultation will remain open for the next 12 weeks, before closing on 23 August 2012. A copy of the draft code and consultation document is available in the consultation section of the ICO website.

A final version of the ‘Anonymisation Code of Practice’ – incorporating any changes recurring from comments received – is due for publication in September.

The code of practice will allow organisations to better achieve compliance against the proposed European Data Protection Act. Read my post Proposed European wide Data Protection Act – a review for further information.

Another alternative to anonymisation is Tokenization which is a recognised solution for PCI DSS. For details of a Free copy of the Tokenization for Dummies eBook click here.


Proposed European wide Data Protection Act – a review

Over the last few months I have attended several conferences and read a lot of research on the proposed upgrade of the European Commission’s 1995 Data Protection Act and have found it fascinating. The rumours, the speeches, the headlines and of course the lack of clarity on how the major issues will be dealt with in the real world.

EU Justice Commissioner Viviane Reding, the Commission’s Vice-President said:

“17 years ago less than 1% of Europeans used the internet. Today, vast amounts of personal data are transferred and exchanged, across continents and around the globe in fractions of seconds,”

“The protection of personal data is a fundamental right for all Europeans, but citizens do not always feel in full control of their personal data. My proposals will help build trust in online services because people will be better informed about their rights and in more control of their information. The reform will accomplish this while making life easier and less costly for businesses. A strong, clear and uniform legal framework at EU level will help to unleash the potential of the Digital Single Market and foster economic growth, innovation and job creation.”

Do not get me wrong I am 100% in favour of a consolidated European Data Protection Act because ambiguity in one country leads to breaches in another and that is not good for business or for the privacy of individual citizens.

After all the consultations and feedback the big development was the leaking of a draft EU Data Protection Act document at the end of 2011. The draft provided concrete evidence to substantiate the rumours and speculation about the requirements and likely fines and provided confirmation about the direction the Act was heading.

The Act is heading in the right direction but some of the points were likely to be contentious for example the “Right to be forgotten” and “all business with 250+ employees needing a Data protection Officer”, there are others but I will cover them later in the post.

One thing is obvious, a consolidated European Data Protection Act has polarised people into one of four camps:

  1. Those concerned with the privacy of the citizen who want more restrictions and tougher sanctions.
  2. Those concerned about the impact and cost to businesses who want less restrictions and lower sanctions.
  3. Those who have to translate and ultimately enforce the Act and to try and stop it becoming another Human Rights Act….! They want a simple and coherent Act that is easy to enforce without a constant steam of lawyers muddying the waters.
  4. Those citizens who in the main do not have a clue what is being done in their name and there are 500 million of them.

Viviane Reding Vice-President of the European Commission, EU Justice Commissioner believes the proposed EU wide Data Protection Act will save European businesses €2.3Billion annually whilst protecting the privacy of European Citizens.

Great, everyone one wins. Or do they?

The majority of the savings will probably benefit businesses that currently have to cope with 27 differing Data Protection Acts currently being operated across the EU commission member states. However if you are a small business operating in one or two countries you may struggle to financially benefit from the consolidation.

The impact on the local Data Protection Authority (DPA), which in the UK is called the Information Commissioner, is likely to be massive which means they will need more staff to accommodate and enforce the new requirements which also means the individual states will have to spend more money.

Why will there be a massive impact? There are several reasons but one in particular stands out as an administrative nightmare, if Personally Identifiable Information (PII) relating to a European citizen is transferred outside the boundaries of the EU the local DPA has to be informed. How many times this will need to be done is hard to calculate but how much data goes to the Call Centres in the Philippines? With 600,000 Philippine’s employed in call centres it is going to be a lot. Then there is the data processing in India, Data Translation in America, Disaster Recover contingencies across the globe, Cloud computing (where is the cloud?), the list of possibilities is endless.

The EU Commission is mindful of these implications and is discussing how some specific actions can be taken into account when defining the final draft. Three specific areas they are looking at are:

  1. Binding corporate rules on what, where and how.
  2. Sectoral adequacies, and the continuation of the Safe Harbour Agreements
  3. Existing mechanisms such as contractual clauses that are broadly used on both sides of the Atlantic.

Using the UK as an example, last year the UK Information Commissioners (ICO) office handled 30,000 complaints and with the proposed requirements on businesses that number could easily quadruple.  You could say “some of the 30,000 complaints lead to convictions and fines and that could pay for the increased costs of operating the new Data Protection Act”, on the face of it you are correct except the fines are collected by the UK Treasury and are not handed to the ICO. If the fines were passed over then the process could be self-funding.

On the 3rd May 2012 Viviane Reding announced the intention to conduct a funding review of all DPAs and then to lobby Governments for the correct funding in each country and she believes that if the leveraged fines were pointed in the right direction they could become a revenue generator for the country.

“the national data protection authority can even be a good investment as it can bring additional revenue for the Member State due to the fact that the main establishment is located in its territory. Such extra revenue and wider benefits can come from tax income, newly created jobs, and the collection of administrative fines on infringements. Let’s also not forget that according to the reform proposals, the administrative fines a national data protection authority can impose can be up to 2% of the annual worldwide turnover of an enterprise. This can lead to quite substantial revenues”

This review will not impact individual DPAs until the summer of 2013 which is likely to be 12 months before the Act is enforceable but 12 months after the hundreds of thousands of business have asked for assistance on what they need to do, who they need to register with, etc.

A significant improvement within the Act will be a requirement on business to be pro-active. Prevention is better than the cure or in this case better than a Data a Breach.

Businesses will be required to:

  • have “Privacy/Data Protection by Design” which means that, at the point of building a process or system, security has to be on the list of desired out-comes.
  • Data Protection by default, which means all systems have to be secure.
  • All business must undertake a Privacy/Data Protection Impact Assessment, which means they must have a documented process for assessing the risk to their PII data and be able to demonstrate that they have undertaken, “at least” annually, an assessment of the risk and taken steps to mitigate the risk. This is not a Penetration Test this is a thorough assessment of people, process and technologies surrounding and impacting on the PII data. A good guide is contained in the book Privacy Impact Assessment by David Wright and Paul de Hert ISBN-10: 9400725426.

Another huge improvement is the requirement on business to formally notify the local DPA of any breaches. Breach Notification has been in existence for several years, for example in California and in Germany. The new requirements will mean businesses can no longer delay notifying those affected in the hope that it will never surface.

It is proposed that the organisation’s Data Controllers notify the DPA within 24 hours.

Mandatory Breach Notification is a difficult area because some breaches can run for months or years before they are discovered. It is the point of discovery that is important, as far as the Act is concerned, but if a business did try to cover up then there is a good chance they will be found out and the details of who did what will be clear for the world to see.

In 2007 when the UK’s HMRC lost a CD containing the child benefit details of 25 million people everyone expected an avalanche of Identity Thefts but, fingers crossed, nothing has happened in the last 5 years. They notified the authorities and the press within days. It could be argued however that, as a result, 25 million people were alerted and put under stress for no reason. Further details of the loss can be found here.

Similar to the HMRC situation in 2008 was when Heartland Payment Systems lost millions of credit card records. In this case they did not know the breach had occurred for approximately 8 months, but when they did find out they undertook forensics and notified the authorities within 8 days. The issue in this case was the data was used for criminal purposes. The criminal Albert Gonzalez AKA “segvec,” “soupnazi” and “j4guar17” has since been convicted and is currently serving 20 years for various crimes involving up to 130 million stolen credit cards’ data. Details of Gonzalez can be found here.

Once the DPA has been informed the organisation then has to inform the individuals affected. This is the first direct cost of a breach. See my post The huge and unexpected administrative costs of a data breach. There is always the risk that they may not understand the notification, for example a report indicated that “39% of those who received them (or properly noticed them) initially thought it was marketing material of some form”.

If adequate protection is in place, for example Tokenization, it is unlikely the organisation will have to inform the individuals. This makes putting security in place and being able to prove it was running essential.

Another impact which affects many countries, especially the UK, is the Freedom of Information Act (FOIA). Currently the FOIA does not allow access to information relating to voluntary breach notifications, which means if a cover up has been attempted but was not successful there is a chance they can avoid having all the information going public by admitting it and therefore suppressing it. The new Act will mean nearly all of the information about a breach will be in the public domain including an organisations failure to protect PII and possibly the organisations attempts to cover it up.

Across Europe the enforcement of the Act will be handled by the individual DPAs, around 1,500 seasoned Data Protection professionals, but many sceptics have speculated that larger businesses can flex their political muscle and lobby for leniency or to keep their breach out of the public eye.

The commission has recently taken a strong line on the need for independence and in April 2012 took action against Hungary for its DPAs lack of independence. For any Country to be hauled in front the of the European Courts of Justice is embarrassing, especially if they have to amend their own legislation. Full details of the Hungarian action can be found here.

Summary of proposed key changes in the proposed Act:

The Right to be forgotten is a contentious area for many organisations, for example;

  • Can someone with a bad credit history evoke the right to avoid their past?
  • If some evokes the right with their insurance company they will lose their Car Insurance no claims bonus – could this then create a right to be remembered? And who pays the administration costs for the reinstatement of the data.
  • In the case of employees past and present what information can be retained and what information has to be retained.

Privacy by Design. There is a debate as to whether the actual working will be Privacy or Data Protection which will be finalised when the final draft is passed for law. Organisations need to understand and account for:

  • why they need the data
  • what they are going to do with the data
  • how they intend to process the data
  • what protections are required
  • who will manage the processes

All organisations employing 250+ employees must have a Data Protection Officer.

All companies storing PII must undertake “regular” Privacy Impact Assessments. The wording may change to Data Protection Impact Assessment but that will not change the requirement to undertake, log and act upon the results of the Assessment.

All international data transfers need to be logged and the Data Protection Authority Informed.

Explicit consent must be obtained to include PII in databases and an ability to easily have their information removed.

Compulsory Breach Notifications within 24 hours of the breach.

Personally Identifiable Information is likely to include

  • Bank Account details
  • Credit Card data
  • IP addresses

Data Portability. Business must address the portability of data;

  • What is going to be done with it
  • How is it secured
  • How will fraud and Identity Theft be avoided

Significant fines can be levied. Actions that are likely to involve a fine from the DPA include

  • Failure to appoint a Data Protection Officer
  • Unauthorised International Data Transfer
  • Failure to undertake a Privacy/Data Protection Impact Assessment

Fines will be levied on a sliding scale

  • 0.5% of global turnover or                  €250,000
  • 1.0% of global turnover or                  €500,000
  • 2% of global turnover or                     €1 million of Global Turnover
  • So far no minimum figure is known.

The new EU Data Protection Act will be compulsory for all organisations except for Law Enforcement, who will operate under a European Commission “directive”. The Directive is designed to allow for faster and easier transfer of data and joined up policing across the member states.

This post was meant to be a short summary, compared to my notes it is, but the far reaching impact of this Act is largely unknown by most organisations and has a high probability of being passed into law during 2012 give a requirement to be compliant by 2014. Whatever the date is there is a need for organisations, of any size, to be aware of what is coming and to start developing plans to have Privacy and Data Protection at the forefront of their business plans NOW.


Information Commissioner finally fines the NHS for a breach of the Data Protection Act

The Aneurin Bevan Health Board (ABHB) has become the first part of the NHS to be issued with a penalty (£70,000) for breaching the Data Protection Act.

The breach occurred when a consultant emailed a letter to a secretary for formatting, but did not include enough information for the secretary to identify the correct patient. The doctor also misspelt the name of the patient at one point, which led to the report being sent to a former patient with a very similar name.

The ICO’s investigation found that neither member of staff had received data protection training and that the organisation didn’t have adequate checks in place to ensure that personal information was sent to the correct person. These poor practices were also used by other clinical and secretarial staff across the organisation.

Stephen Eckersley, the ICO’s Head of Enforcement said:

“The health service holds some of the most sensitive information available. The damage and distress caused by the loss of a patient’s medical record is obvious, therefore it is vital that organisations across this sector make sure their data protection practices are adequate. 

“Aneurin Bevan Health Board failed to have suitable checks in place to keep the sensitive information they handled secure. This case could have been extremely distressing to the individual and their family and may have been prevented if the information had been checked prior to it being sent.

“We are pleased that the Health Board has now committed to taking action to address the problems highlighted by our investigation; however organisations across the health service must stand up and take notice of this decision if they want to avoid future enforcement action from the ICO.”


2,000 lost Medical Records leads to an investigation by the Information Commissioner

Pharmacyrepublic Limited lost around 2000 patients personal details when a computer was stolen from their premises.

Pharmacyrepublic Limited contacted the ICO in September 2011 to report the theft of a Patient Medication Record (PMR) system. The system contained details of the medicine handed out to patients at one of its pharmacies, and was stolen while the pharmacy was being transferred to another provider. The system was supplied by another firm and Pharmacyrepublic failed to ensure that the system was securely returned to the company before leaving the premises.

The ICO’s investigation found that the system contained a limited amount of sensitive information relating to the medicine being administered to the pharmacies’ patients. The system was used to identify any problems when multiple drugs were administered to the same patient. The data hasn’t been recovered.

Stephen Eckersley, the ICO’s Head of Enforcement said:

“It is important that companies have measures in place to keep personal information secure at all times. If a company is vacating premises then they should ensure that any equipment used to store peoples’ data is handled correctly. In this case the system should have been returned to the wholesaler safely and securely.

“This incident should act as a warning to all healthcare providers – your data protection obligations do not end while the personal information of your patients remains on site and in your control.”

Personal Health Information(PHI)  is a growing issue as pharmaceutical companies invest more and more money in clinical trials. In the US PHI is specifically covered by the Health Insurance Portability and Accountability Act (HIPAA) and in the UK and Europe it is handled by Data Protection Acts. An overview of PHI protection and governance is here.


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