An introduction to data protection - 2/09/2015

1. Wednesday 2 September 2015, DMA House, London
James Milligan, Solicitor, DMA
@DMA_UK #dmadata
An introduction to data protection

2. Agenda
9.00 am Registration
9:30 am Welcome and Why is data protection important?
9.35 am Understanding the law
The Data Protection Act 1998
Key terms
8 Principles
10.20 am Break
10.40 am Understanding the law
The Privacy and Electronic Communications Regulation 2003
Key rules
Key points
11.30 am Practical tips for marketers
11.50 am Summary and questions
12.00 pm Close

3. Why is it important?
• It helps us to protect information about ourselves and others
• It helps us avoid damage to the reputation of our organisation
• It makes good business sense – it can increase efficiency and
effectiveness
• It helps us avoid enforcement action by the Information
Commissioner
– both employers and employees can be prosecuted
– companies can face a monetary penalty of up to £500,000
for major breaches

8. v

10. Understanding the law - DPA
• Data Protection Act 1998 (DPA)
– Came into force 1 March 2000
– Replaced 1984 Act
– Covers doing anything with data
– Applies electronic records and some manual records

11. Key terms
• Personal data
– any data that can be used to identify a living individual
– Examples of personal data can include:
• Name and address
• Email address (even business email addresses if they are non generic)
• Name and telephone number
• Photographs
– Only personal data is protected by the DPA
• Sensitive personal data
– any data relating to:
• Health
• Race or ethnic origin
• Political opinions
• Religious beliefs
• Trade union membership
• Sex life
• Criminal proceedings or convictions

12. Key terms
• Processing
– obtaining, recording or holding information or carrying out any
operation on the information including
• Organising
• Adapting
• Retrieving
• Disclosing
• Blocking
• Destroying
• Data subject
– a living identifiable individual to whom the personal data relates

13. Key terms
• Data controller
- Determines how data will be used
- Usually owns or rents the data (may be done by 3rd party on their
behalf)
- Required to notify (register) as a controller with the ICO
- May be fined by ICO if any data breaches arise
• Data processor
- Processes data on behalf of controller or other processor
- Processing can be anything from data storage to
advanced data manipulation and modelling
- Includes companies that manage / broker / collect data on
behalf of others

14. Determining whether data controller or
data processor
• Look at activities each party is carrying out
• Data Controller – over-arching decisions
• Data Processor – freedom to use technical knowledge
• If both parties working well together and dealing with data protection
compliance – no real issues
• Important to determine for when things go wrong e.g. data breach
• Establish roles and responsibilities before work starts
• Obligations of both parties under DPA 1998
• Need for operational guidance behind data processing contract
• Remember that a data processor will also be a data controller in
respect of own employees.

15. The 8 principles
• Fairly and lawfully collected
• Processed for specified and limited purposes
• Adequate, relevant and not excessive
• Accurate and kept up to date
• Not kept for longer than necessary
• Processed in accordance with Individuals’ rights
• Security – appropriate technical and organisational measures
• Not transferred outside the European Economic Area (EEA)
unless adequate protections are in place
• (EEA: The 28 member states of the EU, plus Iceland,
Liechtenstein and Norway)

16. Principle 1: Fairly and lawfully collected
• Fair processing information provided
• Organisation’s identity given
• Purpose of collection made clear
• Further information necessary
• Correct permissions obtained
- Implied consent: opt-out mechanism provided
- Express consent: opt-in mechanism provided
• Sensitive personal data only captured if strictly necessary

17. Principle 2: Processed for limited
purposes
• Only process data for the purpose(s) you told the individual
• Make the purpose(s) clear at the point of data collection
• Change of circumstances – what happens to the data then?
• Subsequent use of data for direct marketing purposes
• Data cleansing – regular and ad hoc

18. Principle 3: Adequate, relevant and
not excessive
• Minimum amount of information required
• Additional information for specific individuals
• Collect data that you will use now
• Collection of data that ‘may be useful’ in the future is
not permitted

19. Principle 4: Accurate and kept up to
date
• Take reasonable steps to ensure accuracy (but what
is ‘reasonable’?)
• Ensure data is not incorrect or misleading
• Undertake regular data cleansing
• Clean data against the relevant preference service
files and other appropriate cleansing files

20. Principle 5: Not kept for longer than
necessary
• Keep for as long as purpose collected for
• Suppression lists

21. Principle 6: Processed in accordance
with the right of data subjects
• Subject access requests
• ‘Where did you get my data from?’
• Right to prevent direct marketing
• Customer service / legally required communications –
no opt-out provision required
• Right to have inaccurate data corrected

22. Principle 7: Technological and
organisational security
• Data security must be appropriate – take account of:
– Current state of technological development
– Cost of implementing security measures
– Potential harm that could result from a data breach
– Nature of data to be protected – non/sensitive?
• Need for risk assessment and risk management techniques
• Record your findings and assessments

23. Principle 7: Technological and
organisational security
• Ensure adequate organisational data security measures
• Prevent unauthorised as well as unlawful processing or disclosure of data
• Security measures by data controller and data processor
• Data processing and transfer agreements in place
• Staff training
• Data access on a ‘need to know’ basis – individual log-ins only
• Secure disposal of data – internally/externally - keep records

24. Principle 8: Processed within the EEA
unless adequate protection in place
• Data can be freely transferred within the EEA (providing
data transfer agreements are in place)
• Do not transfer data unless the country (destination and
countries data is routed via) have an adequate level of
data protection
• Need to inform individuals before transferring their data
outside the EEA but do not need their consent

25. Understanding the law - PECR
• Privacy and Electronic Communications Regulations 2003
(PECR)
– Came into force 11 December 2003
– Covers electronic communications – email, telephone,
SMS

27. Nuisance calls
• 2013 2 parliamentary inquiries
– All Party Parliamentary Group on Nuisance Calls
– Commons Select Committee on Culture Media and Sport
• 2014 Government Published Nuisance Call Action Plan
• Which? Taskforce on Consent
• Govt. consultation end of 2014 on lowering threshold
– Need for significant damage and distress
– 3 options in consultation paper
• Option 1- do nothing
• Option 2 – annoyance, inconvenience or anxiety
• Option 3- remove existing legal threshold
– Govt. opted for option 3

28. Nuisance calls
• Threshold may have been removed but still have to
prove serious contravention and criminal
negligence on the part of the organisation
• In force since April 6 2015 – applies to activities
after this date
• 2015 Budget – £ 3.5 million to be invested in ways
to protect vulnerable consumers from nuisance
calls

29. Key rules
• Sender must not conceal their identity
• Communication must have valid address where opt-outs can
be sent
• Opt-in required for individuals (B2C)
• Soft opt-in/existing customer exemption – available:
– When you are collecting the address/mobile number in the
sale or negotiations for the sale of a product or service;
– You only send communications about similar products and
services;
– You provided an opportunity at time of collection to opt-out.

30. Key points
• Existing customer exemption: Not an excuse for unsolicited contact
where correct permissions were never obtained
• B2B – Opt-out and marketing message needs to directly relate to the
work they do.
• Subject headers in emails must be clear and accurate
• Free and simple-to-use opt-out method must always be provided
• Action unsubscribe requests promptly – add to internal suppression
file
• Maintain different flags for different types of communication – helps to
avoid general opt-outs for all channels

31. Practical tips for marketers
• Data capture forms
• Marketing permissions
• Sourcing data
• Regaining lost permission

32. Data capture forms
• Key information to include;
– Why the data is being requested
– What the data will be used for
– Provision of an opt-in/out for marketing
– Marketing channels to be used
– Link to privacy policy
• Key information to include in privacy policy
– How the data subject can opt-out of marketing
– If the data will be processed outside the EEA
– How long the data will be kept for
– How to make a subject access request
– How to make a complaint regarding use of data

33. Marketing permissions
Own marketing 3rd party marketing Own marketing 3rd party marketing
Mail opt-out
opt-out (MPS
screening) opt-out opt-out
Telephone opt-out
opt-out (TPS
screening) opt-out
opt-out (TPS/ CTPS
screening)
Email
opt-in/ soft opt-
in opt-in
opt-in (unless
corporate
subscriber
exemption)
opt-in (unless
corporate subscriber
exemption)
SMS
opt-in/ soft opt-
in opt-in opt-in opt-in
Fax opt-in opt-in opt-out
opt-out (FPS
screening)
B2C B2B

34. Sourcing data/due diligence
• Who compiled the list? When? Has it been
amended or updated since?
• When was consent obtained?
• Who obtained consent and what was the context?
• Was it opt-in or opt-out?
• Was information provided clearly and intelligibly?
How was it provided?
• Did it list organisations by name, by description, or
any third party?

35. Regaining lost permissions
• Why was permission lost:
– Poor customer service?
– Poor communications timing?
– Inappropriate offers?
– In-house technical issues – permissions not recorded on
CRM system
• Revalidation exercise – obtaining up-to-date data
• Can very occasionally include request regarding marketing
update in a service message providing it is a minor part of the
message
• If you have only lost permission for certain channels, contact
via another channel to update permissions

36. Data protection toolkit
www.dma.org.uk/product/data-protection-toolkit

37. Summary and questions

38. Contacts
James Milligan
DMA Solicitor
T - 020 7291 3347
james.milligan@dma.org.uk
Legal Advice Email Box
legaladvice@dma.org.uk