Data Protection Act 1998


Data Protection Act 1998

The Data Protection Act 1998 is a United Kingdom Act of Parliament which defines UK law on the processing of data on identifiable living people. It is the main piece of legislation that governs the protection of personal data in the UK. Although the Act itself does not mention privacy, it was enacted to bring UK law into line with the European Directive of 1995 which required Member States to protect people's fundamental rights and freedoms and in particular their right to privacy with respect to the processing of personal data. In practice it provides a way for individuals to control information about themselves. Most of the Act does not apply to domestic use,[1] for example keeping a personal address book. Anyone holding personal data for other purposes is legally obliged to comply with this Act, subject to some exemptions. The Act defines eight data protection principles. It also requires companies and individuals to keep personal information to themselves.

Contents

History

The 1998 Act replaced and consolidated earlier legislation such as the Data Protection Act 1984 and the Access to Personal Files Act 1987. At the same time it aimed to implement the European Data Protection Directive. In some aspects, notably electronic communication and marketing, it has been refined by subsequent legislation for legal reasons. The Privacy and Electronic Communications (EC Directive) Regulations 2003 altered the consent requirement for most electronic marketing to "positive consent" such as an opt in box. Exemptions remain for the marketing of "similar products and services" to existing customers and enquirers, which can still be permissioned on an opt out basis.

Plain-language summary of key principles

This section provides a quick overview of what the Key Principles of information-handling practice mean. The Key Principles themselves are discussed below in the context of their definition in law.

  • Data may only be used for the specific purposes for which it was collected.
  • Data must not be disclosed to other parties without the consent of the individual whom it is about, unless there is legislation or other overriding legitimate reason to share the information (for example, the prevention or detection of crime). It is an offence for Other Parties to obtain this personal data without authorisation.
  • Individuals have a right of access to the information held about them, subject to certain exceptions (for example, information held for the prevention or detection of crime).
  • Personal information may be kept for no longer than is necessary and must be kept up to date.
  • Personal information may not be sent outside the European Economic Area unless the individual whom it is about has consented or adequate protection is in place, for example by the use of a prescribed form of contract to govern the transmission of the data.
  • Subject to some exceptions for organisations that only do very simple processing, and for domestic use, all entities that process personal information must register with the Information Commissioner's Office.
  • The departments of a company that are holding personal information are required to have adequate security measures in place. Those include technical measures (such as firewalls) and organisational measures (such as staff training).
  • Subjects have the right to have factually incorrect information corrected (note: this does not extend to matters of opinion)

Personal data

The Act covers any data about a living and identifiable individual. Anonymised or aggregated data is not regulated by the Act, providing the anonymisation or aggregation has not been done in a reversible way. Individuals can be identified by various means including their name and address, telephone number or Email address. The Act applies only to data which is held, or intended to be held, on computers ('equipment operating automatically in response to instructions given for that purpose'), or held in a 'relevant filing system'.

In some cases even a paper address book can be classified as a 'relevant filing system', for example diaries used to support commercial activities such as a salesperson's diary.

Subject rights

The Data Protection Act creates rights for those who have their data stored, and responsibilities for those who store, process or The person who has their data processed has the right to[2]

  • View the data an organisation holds on them, for a small fee, known as 'subject access fee'[3]
  • Request that incorrect information be corrected. If the company ignores the request, a court can order the data to be corrected or destroyed, and in some cases compensation can be awarded.[4]
  • Require that data is not used in any way that may potentially cause damage or distress.[5]
  • Require that their data is not used for direct marketing.[6]

Data protection principles

  1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless-
    1. at least one of the conditions in Schedule 2 is met, and
    2. in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
  2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.
  3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.
  4. Personal data shall be accurate and, where necessary, kept up to date.
  5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
  6. About the rights of individuals e.g. You have the right to have data about you removed.[7]
  7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
  8. Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.

Conditions relevant to the first principle

Personal data should only be processed fairly and lawfully. In order for data to be classed as 'fairly processed', at least one of these six conditions must be applicable to that data (Schedule 2).

  1. The data subject (the person whose data is stored) has consented ("given their permission") to the processing;
  2. Processing is necessary for the performance of, or commencing, a contract;
  3. Processing is required under a legal obligation (other than one stated in the contract);
  4. Processing is necessary to protect the vital interests of the data subject;
  5. Processing is necessary to carry out any public functions;
  6. Processing is necessary in order to pursue the legitimate interests of the "data controller" or "third parties" (unless it could unjustifiably prejudice the interests of the data subject).[8]

Sensitive personal data must be processed according to a stricter set of conditions, in particular any consent must be explicit.

Exceptions

The Act is structured such that all processing of personal data is covered by the act, while providing a number of exceptions in Part IV.[1] Notable exceptions are:

  • Section 28 - National security. Any processing for the purpose of safeguarding national security is exempt from all the data protection principles, as well as Part II (subject access rights), Part III (notification), Part V (enforcement), and Section 55 (Unlawful obtaining of personal data).
  • Section 29 - Crime and taxation. Data processed for the prevention or detection of crime, the apprehension or prosecution of offenders, or the assessment or collection of taxes are exempt from the first data protection principle.
  • Section 36 - Domestic purposes. Processing by an individual only for the purposes of that individual's personal, family or household affairs is exempt from all the data protection principles, as well as Part II (subject access rights) and Part III (notification).

Offences

The Act details a number of civil and criminal offences for which data controllers may be liable if a data controller has failed to gain appropriate consent from a data subject. However 'consent' is not specifically defined in the Act; consent is therefore a common law matter.

  • Section 21 - This section makes it an offence to process personal information without Registration or to fail to comply with the notification regulations.[9]
  • Section 55 - Unlawful obtaining of personal data. This Section makes it an offence for people (Other Parties), such as hackers and impersonators, outside the organisation to obtain unauthorised access to the personal data.[10]
  • Section 56 - This section makes it a criminal offence to require an individual to make a Subject Access Request relating to cautions or convictions for the purposes of recruitment, continued employment, or the provision of services.[11] This was brought into effect by the The Data Protection Act 1998 (Commencement No. 2) Order 2008.[12]

Complexity

The UK Data Protection Act is a large Act that has a reputation for complexity.[13] While the basic principles are honoured for protecting privacy, interpreting the act is not always simple. Many companies, organisations and individuals seem very unsure of the aims, content and principles of the DPA. Some hide behind the Act and refuse to provide even very basic, publicly available material quoting the Act as a restriction.[14] The act also impacts on the way in which organisations conduct business in terms of who can be contacted for marketing purposes, not only by telephone and direct mail, but also electronically and has led to the development of permission based marketing strategies.

Problems of Interpretation

Definition of personal data

The definition of personal data is data which relates to a living individual who can be identified:—

  • from that data, or
  • from that data and other information which is in the possession of, or is likely to come into the possession of, the data controller

Sensitive personal data concerns the subject's race, ethnicity, politics, religion, trade union status, health, sex life or criminal record.[15]

Subject access

Personal data which is normally held for under 40 days may be legitimately denied in subject access requests under The Act. This is a consequence of the time limit data controllers must meet in making their response. If the data has been deleted by the normal procedures of the business by the time the data controller responds to a request, that data cannot be supplied. For data such as Closed-circuit television images which are routinely overwritten, it may be impossible for a subject to exercise their data access rights.

Regulation

Compliance with the Act is regulated and enforced by an independent authority, the Information Commissioner's Office, which maintains guidance relating to the Act. Full details can be found at ico.gov.uk[16][17]

See also

References

  1. ^ a b Data Protection Act 1998, Part IV (Exemptions), Section 36, Office of Public Sector Information, accessed 6 September 2007
  2. ^ Your rights, ICO, accessed 6 September 2007
  3. ^ As of 2006, the maximum fee is £10 per individual, FAQs, ICO
  4. ^ Correcting information, ICO
  5. ^ Data Protection Act 1998, Part II (Rights of data subjects and others), Section 10, Office of Public Sector Information, accessed 6 September 2007
  6. ^ Data Protection Act 1998, Part II (Rights of data subjects and others), Section 11, Office of Public Sector Information, accessed 6 September 2007
  7. ^ The rights of individuals (Principle 6), ICO.gov.uk, accessed 14 April 2011
  8. ^ OPSI.gov.uk Data Protection Act 1998 Schedule 2
  9. ^ Data Protection Act 1998, Part III (Notification by Data Controllers), Section 21, Office of Public Sector Information
  10. ^ Data Protection Act 1998, Part VI (Miscellaneous and General), Section 55, Office of Public Sector Information, accessed 14 September 2007
  11. ^ Data Protection Act 1998, Part VI (Miscellaneous and General), Section 56, Office of Public Sector Information, accessed 14 September 2007
  12. ^ Statutory Instrument 2008 No. 1592 (C. 71), legislation.gov.uk
  13. ^ Bainbridge, D: "Introduction to Computer Law - Fifth Edition", page 430. Pearson Education Limited, 2005
  14. ^ Data Protection myths and realities, Information Commissioner's Office, accessed 30 August 2008
  15. ^ OPSI.gov.uk
  16. ^ ICO.gov.uk
  17. ^ Guidance - The Data Protection Act, Page of Assorted Guidance, Information Commissioner's Office, accessed 20 October 2007

External links


UK Legislation


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