Privacy & Information Security Law Blog

On May 14, 2024, the UK National Cyber Security Centre (“NCSC”) and three major UK insurance associations (Association of British Insurers (“ABI”), British Insurance Brokers’ Association (“BIBA”) and International Underwriting Association (“IUA”)), published joint guidance on the approach to ransom payments (the “Guidance”). The Guidance was prepared for businesses experiencing a ransomware attack with the aim of reducing the overall impact of the incident on the business. The Guidance is intended, among other things, to reduce the number of ransoms paid by ransomware victims in the UK, and the size of the ransoms paid in cases where the victims do elect to pay. 

On May 1, 2024, the UK Information Commissioner’s Office (“ICO”) and the UK regulator for communications and online safety, Ofcom, issued a joint statement regarding their collaboration on the regulation of online services where online safety and data protection intersect. This statement builds on the joint statement published in 2022. The latest statement outlines several areas of collaboration between the ICO and Ofcom.

On April 12, 2024, the UK Information Commissioner’s Office launched the third installment in its consultation series examining how data protection law applies to the development and use of generative AI. 

On April 12, 2024, the UK Information Commissioner’s Office (“ICO”) launched the third installment in its consultation series examining how data protection law applies to the development and use of generative AI. This installment focuses on how the data protection principle of accuracy applies to the outputs of generative AI models, and the impact that accurate training data has on the output. The two previous installments discussed the lawful basis for web scraping to train generative AI models, and purpose limitation in the generative AI lifecycle. 

On April 1, 2024, the U.S. and UK signed a Memorandum of Understanding that details how the U.S. and UK will work together to develop tests for advanced AI models.

On March 18, 2024, the UK Information Commissioner’s Office (“ICO”) published new data protection fining guidance on how the ICO determines penalties and calculates fines. The guidance was subject to a consultation process in 2023, and covers a variety of topics and considerations relevant to penalties and fines, including:

On March 1, 2024, the UK Information Commissioner’s Office (“ICO”) announced that it had issued an enforcement notice and a warning to the UK Home Office for failing to sufficiently assess the privacy risks posed by the electronic monitoring of people arriving in the UK via unauthorized means. The Home Office is the ministerial department of the UK government responsible for immigration, security, and law and order.

On February 22, 2024, the Federal Trade Commission announced a settlement order against Avast Limited (“Avast”) requiring Avast to pay $16.5 million and prohibiting Avast from selling or licensing any web browsing data for advertising purposes. This ban is to settle charges that the company and its subsidiaries sold such information to third parties after promising that its products would protect consumers from online tracking.

On February 23, 2024, the UK Information Commissioner’s Office (the “ICO”) reported that it had ordered public service providers Serco Leisure, Serco Jersey and associated community leisure trusts (jointly, “the Companies”) to stop using facial recognition technology (“FRT”) and fingerprint scanning (“FS”) to monitor employee attendance.

On February 16, 2024, the UK Information Commissioner’s Office (the “ICO”) published its first piece of guidance on content moderation. The ICO defines content moderation in the guidance as the analysis of user-generated content to assess whether it meets certain standards, and any action a service takes as a result of this analysis. This process includes the processing of personal data and,  according to the ICO in its statement, “can cause harm if incorrect decisions are made,” for example content being incorrectly defined as illegal.

On February 6, 2024, the UK government published a response to the consultation on its AI Regulation White Paper, which the UK government originally published in March 2023. The White Paper set forth the UK government’s “flexible” approach to regulating AI through five cross-sectoral principles for the UK’s existing regulators to interpret and apply within their remits (read further details on the White Paper). A 12-week consultation on the White Paper was then held and this response summarizes the feedback and proposed next steps.

In November 2023, the UK Information Commissioner’s Office (“ICO”) wrote to organizations operating 53 of the UK’s biggest websites regarding their compliance with data protection laws when using cookies.  On January 31, 2024, the ICO released a statement on such action noting that it received “an overwhelmingly positive response” with 38 of those organizations having changed their cookie banners in order to come into compliance. Others have either committed to ensuring compliance within a month, or are exploring other solutions such as contextual advertising.

On January 24, 2024, the UK National Cyber Security Centre (“NCSC”) announced it had published a report on how AI will impact the efficacy of cyber operations and the cyber threats posed by AI over the next two years. The report concludes that AI “will almost certainly increase the volume and heighten the impact of cyber attacks over the next two years.” The report also notes that all types of cyber threat actors, including state and non-state, and of varying skill level, already use AI to some degree. The report further notes that AI provides capability uplift in reconnaissance ...

On January 23, 2024, the UK government announced that it published a draft Code of Practice on cybersecurity governance (the “Code”). The guidelines in the Code are intended to “help directors and senior leaders shore up their defences from cyber threats.” The Code has been designed in partnership with industry directors, cyber and governance experts, and the UK National Cyber Security Centre (NCSC), with a key focus to ensure that organizations have detailed plans in place to respond to and recover from any potential cyber incidents. While it is acknowledged that “there ...

On January 18, 2024, the UK Information Commissioner’s Office (“ICO”) published an updated Opinion on age assurance for the Children’s Code (the “Opinion”). The Children’s Code is a statutory code of practice setting out how information society services likely to be accessed by children should protect children’s information rights online.

On January 15, 2024, the UK Information Commissioner’s Office (“ICO”) announced that it has launched a consultation series on generative AI. The series will examine how aspects of UK data protection law should apply to the development and use of the technology, with the first chapter of the series focusing on when it is lawful to train generative AI models on personal data scraped from the web. The ICO invites all stakeholders with an interest in generative AI to respond to the consultation, including developers and users of generative AI, legal advisors and consultants working ...

On December 18, 2023, the updated response from UK Information Commissioner John Edwards to the Data Protection and Digital Information (No 2) Bill (the “Bill”) was published on the website of the Information Commissioner’s Office (ICO). The Commissioner’s original response was published in March 2023. In the latest response, the Commissioner states that he is “pleased to note that government made some changes…in response to my comments,” specifically with regards the definition of “vexatious requests” in respect of requests made to the Information Commissioner’s Office, and the drafting of the changes to the safeguards for processing for research purposes. However, the Commissioner goes on to state that the majority of his comments currently remain unaddressed, including with regards the definition of high risk processing. 

On December 12, 2023, the UK Information Commissioner’s Office (“ICO”) announced that it is producing an online resource relating to employment practices and data protection. The ICO also announced that it would be releasing draft guidance on the different topic areas to be included in the resource in stages, and adding to it over time. The ICO provided draft guidance on “Keeping employment records” and “Recruitment and selection” for consultation. The former draft guidance aims to provide direction on compliance with data protection law when keeping records ...

On November 22, 2023, the Artificial Intelligence (Regulation) Bill was introduced into the UK Parliament’s House of Lords. The purpose of the Bill is to make provision for the regulation of AI and for connected purposes. 

On November 23, 2023, the UK government’s National Cyber Security Centre (“NCSC”) and the Republic of Korea’s National Intelligence Service (“NIS”) issued a joint advisory detailing techniques and tactics used by cyber actors linked to the Democratic People’s Republic of Korea (“DPRK”) that are carrying out software supply chain attacks. The publication follows the recent announcement of a new Strategic Cyber Partnership between the UK and the Republic of Korea where the two nations have committed to work together to tackle common cyber threats.

On November 27, 2023, the UK government announced the first global guidelines to ensure the secure development of AI technology (the “Guidelines”), which were developed by the UK National Cyber Security Centre (“NCSC”) and the U.S. Cybersecurity and Infrastructure Security Agency (“CISA”), in cooperation with industry experts and other international agencies and ministries. The guidelines have been endorsed by a further 15 countries, including Australia, Canada, Japan, Nigeria, and certain EU countries (full list here).

On November 21, 2023, the UK Information Commissioner’s Office (“ICO”) issued a statement explaining that it has recently written to companies operating some of the UK’s most visited websites regarding their compliance with data protection laws when using cookies. The ICO noted that certain websites are not providing users with fair choices as to whether or not they are tracked for personalized marketing purposes, and referred to its guidance on making it simple for users to “Reject All” advertising cookies. 

On November 8, 2023, the UK Information Commissioner’s Office (“ICO”) and the European Data Protection Supervisor (“EDPS”) announced they have signed a Memorandum of Understanding (“MOU”) intended to reinforce their “common mission to uphold individuals’ data protection and privacy rights, and cooperate internationally to achieve this goal”. The MOU sets out broad principles of collaboration between the ICO and EDPS and the legal framework governing the sharing of relevant information and intelligence. The ICO and EDPS consider that, when addressing similar issues, reducing divergencies in their regulatory approaches will benefit public and private organizations, individuals, and other stakeholders in the UK and EU.  

On November 1, 2023, 29 nations, including the U.S., the UK, the EU and China (full list available here), reached a ground-breaking agreement, known as the Bletchley Declaration. The Declaration sets forth a shared understanding of the opportunities and risks posed by AI and the need for governments to work together to meet the most significant challenges posed by the technology. The Declaration states  that there is an urgent need to understand and collectively manage the potential risks posed by AI to ensure the technology is developed and deployed in a safe, responsible way. The Declaration was signed at the AI Safety Summit 2023, held at Bletchley Park in the UK.

On October 26, 2023, the UK Online Safety Act (the “Act”) received Royal Assent, making it law in the UK. The Act seeks to protect children from online harm and imposes obligations on relevant organizations, including social media platforms, to prevent and remove illegal and harmful content. In a press release, the UK Government stated that the Act “takes a zero-tolerance approach to protecting children from online harm, while empowering adults with more choices over what they see online.” For example, the Act requires relevant organizations to:

On October 17, 2023, The First-tier Tribunal of the UK General Regulatory Chamber allowed an appeal by Clearview AI Inc. (“Clearview”) against an enforcement notice and fine issued by the UK’s Information Commissioner’s Office (“ICO”).

On October 3, 2023, the UK Information Commissioner's Office ("ICO") published new Guidance on lawful monitoring in the workplace, designed to help employees comply with their obligations under the UK General Data Protection Regulation ("UK GDPR") and the Data Protection Act 2018 ("DPA").

On September 21, 2023, the UK Information Commissioner’s Office (“ICO”) published an opinion on the UK Government’s assessment of adequacy for the UK Extension to the EU-U.S. Data Privacy Framework (the “UK Extension”). The ICO provides that, while it is reasonable for the Secretary of State to conclude that the UK Extension provides an adequate level of data protection and lay regulations to that effect, there are four specific areas that could pose risks to UK data subjects if the protections identified are not properly applied. These four risks are: 

On September 21, 2023, UK Secretary of State for Science, Innovation and Technology Michelle Donelan laid regulations in the UK Parliament, giving effect to a UK-U.S. Data Bridge. The regulations are supported by several documents, including a fact sheet and an “explainer.”  The regulations are due to take effect on October 12, 2023. U.S. companies approved to join the “UK Extension to the EU-US Data Privacy Framework” will be able to receive UK personal data under the new Data Bridge.

On September 12, 2023, the UK Information Commissioner, John Edwards, and the Chief Executive of the National Cyber Security Centre (NCSC) of the UK, Lindy Cameron, signed a joint Memorandum of Understanding (MoU) that sets forth a framework for cooperation and information sharing between the ICO and the NCSC. The MoU states the general aims “are to codify and enhance working” between the ICO and NCSC so as to “assist them in discharging their functions.”

On August 24, 2023, 12 data protection authorities published a joint statement calling for the protection of personal data from unlawful data scraping. The statement was issued by the authorities of Argentina, Australia, Canada, Colombia, Hong Kong, Jersey, Mexico, Morocco, New Zealand, Norway, Switzerland and the UK. The joint statement reminds organizations that personal data that is publicly accessible is still subject to data protection and privacy laws in most jurisdictions, and highlights the risks facing such data, including increased risk of social engineering or phishing attacks, identify fraud, and unwanted direct marketing or spam.

On June 19, 2023, the UK Information Commissioner’s Office (“ICO”) recommended that organizations start using privacy enhancing technologies (“PETs”) to share personal information safely, securely and anonymously. The ICO also has issued new guidance on PETs which is aimed at those using large data sets in finance, healthcare, money laundering and cybercrime. The guidance contains information on how PETs can be used to help organizations with data protection compliance and technical detail on the different types of PETs currently available.

On June 15, 2023, the UK Information Commissioner’s Office (“ICO”) called for businesses to address the privacy risks posed by generative artificial intelligence (“AI”) before “rushing to adopt the technology.” Stephen Almond, the ICO’s Executive Director of Regulatory Risk, said:  “Businesses are right to see the opportunity that generative AI offers . . . . But they must not be blind to the privacy risks.” An organization wishing to use AI should seek to understand at the outset how AI will use personal data, and mitigate any known risks. The ICO stated it is ...

On June 8, 2023, the United Kingdom and the United States announced they reached a commitment in principle to establish the UK Extension to the Data Privacy Framework, which will create a “data bridge” between the two countries. U.S. companies approved to join the framework would be able to receive UK personal data under the new data bridge.

On June 8, 2023, the UK Information Commissioner’s Office (“ICO”) published a new report on neurotechnology. Neurotechnology is technology used to monitor neurodata, the information coming directly from the brain and nervous system. In its press release on the report, the ICO warns that “that newly emerging neurotechnologies risk discriminating against people if those groups are not put at the heart of their development” and predicts the use of such technologies to become “widespread over the next decade.”

On May 24, 2023, the UK Information Commissioner’s Office (“ICO”) announced it published new guidance for businesses and employers on responding to subject access requests (“SARs”). The right of access, commonly referred to as a subject access request, gives someone the right to request a copy of their personal information from organizations. The ICO received over 15,000 complaints related to SARs during April 2022 and March 2023.

On May 23, 2023, the UK Information Commissioner, John Edwards, delivered the opening remarks at the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”). The Commissioner opened his speech by stating his “principal reason” for being present was to provide “reassurance” that he takes his “responsibility of protecting Europeans data in the United Kingdom very seriously” and “will continue to do so through the process of law reform, and beyond.” The Commissioner went on to discuss several points, including the following:

On March 22, 2023, Capita PLC (“Capita”) experienced a cyber incident which it announced in a press release on April 3, 2023 and an update on April 20, 2023. Capita identified the incident on March 31, 2023, and confirmed the incident caused disruption to some services provided to individual clients, which has now been resolved. On April 21, 2023, the UK Information Commissioner’s Office (“ICO”) issued a statement confirming that Capita reported the incident and the ICO is investigating. The ICO also noted that other organizations affected by the incident should “consider their position[s]” and, if necessary, submit a breach notification.

On April 4, 2023, the data protection regulator of the UK, the Information Commissioner’s Office (ICO), issued a fine of a £12.7 million to TikTok Information Technologies UK Limited and TikTok Inc (together, “TikTok”) for a number of breaches of UK data protection law, including failing to use children’s personal data lawfully. 

On March 29, 2023, the UK government published a white paper on artificial intelligence (“AI”) entitled “A pro-innovation approach to AI regulation.” The white paper sets out a new “flexible” approach to regulating artificial intelligence which is intended to build public trust in AI and make it easier for businesses to grow and create jobs. 

On March 15, 2023, the UK Information Commissioner’s Office (“ICO”) published an updated version of its guidance on AI and data protection (the “updated guidance”), following requests from UK industry to clarify requirements for fairness in AI. 

This is an excerpt from Centre for Information Policy Leadership (“CIPL”) President Bojana Bellamy’s recently published piece in the IAPP “Privacy Perspectives” blog, and are the views of the author.

On March 8, 2023, the UK Secretary of State for Science, Innovation and Technology, Michelle Donelan, introduced the Data Protection and Digital Information (No. 2) Bill to UK Parliament. The first version of the reform bill was originally proposed by the UK government in July 2022, but was put on pause during September 2022. 

On February 20, 2023, in the case of Experian Limited v The Information Commissioner, the First-Tier Tribunal in the UK (the “Tribunal”) ruled on the ICO’s action to require Experian to make changes to how it processes personal data for direct marketing purposes. While the Tribunal supported the ICO in certain respects, it largely ruled in favor of Experian and issued a Substituted Decision Notice, as detailed further below.

On January 26, 2023, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth responded to a call for input from the UK’s Digital Regulation Cooperation Forum (DRCF) on its workplan for 2023 – 2024.

On January 10, 2023, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth  responded to a call for public comments from the European Data Protection Board (“EDPB”) regarding their Recommendations 1/2022 on the Application for Approval and on the elements and principles to be found in Controller Binding Corporate Rules (Art. 47 GDPR) (“Recommendations 1/2022”). The Recommendations 1/2022 are intended to bring existing Controller Binding Corporate Rules (“BCR-C”) in line with the GDPR and the Schrems II ruling.

On December 9, 2022, Hunton Andrews Kurth LLP London senior consultant attorney Rosemary Jay received the 2022 PICCASO Privacy Award for Achievement in recognition of her longstanding contributions to the data privacy industry.

On  December 15, 2022, the UK government and the Dubai International Financial Centre Authority (“DIFC”) issued a joint statement on the shared commitment to deepening the UK-DIFC data partnership. The statement explains that “[t]here are over 5,000 UK companies operating in the UAE, many of which depend on the free and secure flow of safe data across borders.” Further, the UK and the DIFC have strong links in the financial sector, following the DIFC’s establishment in 2004, with 16% of the DIFC’s financial services companies originally based in the UK.

The UK Information Commissioner’s Office (“ICO”) recently published a package of detailed guidance and checklists for direct marketing activities. The ICO’s new webpage on direct marketing now includes various resources, including specific guidance for SMEs, business-to-business marketing, and organizations using the marketing services of data brokers, as well as direct marketing FAQs and checklists, and a training module for businesses.

On November 30, 2022, the UK government confirmed that the Network and Information Systems (“NIS”) Regulations 2018 (“NIS Regulations”) will be strengthened to protect essential and digital services against cyber attacks. The changes bring providers of outsourced IT and managed service providers (“MSPs”) into scope of the NIS Regulations. The announcement comes in response to a public consultation held in January this year.

On November 25, 2022, the UK Information Commissioner’s Office (“ICO”) and the UK’s communications regulator, Ofcom, issued a joint statement setting out how they intend to work together to “ensure coherence between the data protection and the new online safety regimes.” The regulators noted that the statement is primarily intended for online service providers that are likely to be regulated under the online safety regime, but it also will be of interest to other stakeholders as an indication of their joint direction.

On November 23, 2022, the UK government’s Department for Digital, Culture, Media & Sport (“DCMS”) announced that it had completed its assessment of South Korea’s personal data legislation, and concluded that sufficiently strong privacy laws are in place to protect UK personal data transferred to South Korea while upholding the rights and protections of UK citizens.

On November 17, 2022, the UK data protection regulator, the Information Commissioner’s Office (“ICO”), published updated guidance on international transfers that includes a new section on transfer risk assessments (“TRAs”) and a TRA tool.

In its statement regarding the updated guidance, the ICO describes the TRA guidance as “an alternative approach to the one put forward by the European Data Protection Board” and says its aim is “to find an alternative, achievable approach delivering the right protection for the people the data is about, whilst ensuring that the assessment is reasonable and proportionate.”

On  November 2, 2022, the ICO issued to the UK Department for Education (“DfE”) a formal reprimand following an investigation into the sharing of personal data stored on the Learning Records Service (“LRS”), a database which provides a record of pupils’ qualifications that the DfE has overall responsibility for. The investigation found that the DfE’s poor due diligence meant the LRS database was being used by Trust Systems Software UK Ltd (trading as Trustopia), a third party screening firm, to check whether people opening online gambling accounts were 18. Trustopia was found to have had access from September 2018 to January 2020, during which it performed over 20,000 searches on children whose personal data was in the LRS database.

On September 23, 2022, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted a response to the UK Department for Digital, Culture, Media & Sport (“DCMS”) on its Consultation on establishing a pro-innovation approach to regulating AI (the “Response”).

On October 24, 2022, the UK Information Commissioner’s Office (“ICO”) issued a £4.4 million fine to Interserve Group Limited for failing to keep employee personal data secure, which violates Article 5(1)(f) and Article 32 of the EU General Data Protection Regulation (“GDPR”), during the period of March 2019 to December 2020. The ICO determined that such violations rendered Interserve vulnerable to the cyber attack which took place between March 2020 and May 2020, affecting the personal data of up to 113,000 Interserve employees. The compromised data included contact details, national insurance numbers and bank account details, as well as special category data, including ethnic origin, religion, details of any disabilities, sexual orientation and health information.

On October 12, 2022, the UK Information Commissioner's Office (“ICO”) launched a public consultation on its draft guidance on employers’ obligations when monitoring at work (“Draft Guidance”). In addition, the ICO has published an impact scoping document, which outlines some of the context and potential impacts of the Draft Guidance (“Impact Scoping Document”).

On October 3, 2022, the U.S. Department of Justice (“DOJ”) announced that the agreement between the U.S. Government and the UK Government on Access to Electronic Data for the Purpose of Countering Serious Crime (the “CLOUD Act Agreement”) entered into force, effective the same day. The CLOUD Act Agreement, which is authorized by the U.S. Clarifying Lawful Overseas Use of Data (“CLOUD”) Act, is the first of its kind and will allow each country’s investigators to gain access to data held by service providers in the other country, for the purpose of combating serious crime. According to DOJ, this “will greatly enhance the ability of the United States and the United Kingdom to prevent, detect, investigate and prosecute serious crime, including terrorism, transnational organized crime, and child exploitation, among others.”

On September 26, 2022, the UK Information Commissioner’s Office (“ICO”) confirmed in a statement that it issued TikTok Inc. and TikTok Information Technologies UK Limited (together, “TikTok”) a notice of intent to potentially impose a £27 million fine for failing to protect children’s privacy. This notice of intent follows an investigation by the ICO finding that TikTok may have breached UK data protection law between May 2018 and July 2020 by failing to protect children’s privacy when using the TikTok platform.

On September 15, 2022, California Governor Gavin Newsom signed into law the California Age-Appropriate Design Code Act (the “Act”). The Act, which takes effect July 1, 2024, places new legal obligations on companies with respect to online products and services that are “likely to be accessed by children” under the age of 18.

On May 16, 2022, the U.S. Department of State, U.S. Department of Treasury and the Federal Bureau of Investigation issued combined guidance (“IT Workers Advisory”) on efforts by North Korean nationals to secure freelance engagements as remote information technology (“IT”) workers by posing as non-North Korea nationals. The IT Workers Advisory provides employers with detailed information on how North Korean IT workers operate; highlights red flag indicators for companies hiring freelance developers and for freelance and payment platforms to identify these workers; and provides general mitigation measures for companies to better protect against inadvertently engaging these workers or facilitating the operations of the North Korean government (“DPRK”) in violation of U.S. sanctions.

On May 10, 2022, as part of the Queen’s Speech, the UK government announced its intention to introduce a Data Reform Bill (the “Bill”). The UK government’s background and briefing notes to the Queen’s Speech state that the purpose of the Bill is to “take advantage of the benefits of Brexit to create a world class data rights regime…that reduces burdens on businesses, boosts the economy, helps scientists to innovate and improves the lives of people in the UK.”

On February 2, 2022, the Secretary of State placed the UK Information Commissioner’s Office's (“ICO's ”) final international data transfer agreement (“IDTA”) and international data transfer addendum to the European Commission’s standard contractual clauses (“SCCs”) for international data transfers (“Addendum”) before the European Parliament. The IDTA and Addendum are set to come into force on March 21, 2022, but the ICO advises that they are of use to organizations immediately. The ICO also has stated that it intends to publish additional guidance on use of the IDTA and Addendum.

View the ICO’s final drafts of the IDTA and Addendum.

On December 20, 2021, the UK Information Commissioner’s Office (“ICO”) launched a public consultation on its regulatory approach. The consultation involves three separate documents – the ICO’s Regulatory Action Policy (“RAP”), Statutory Guidance on the ICO’s Regulatory Action, and Statutory Guidance on the ICO’s PECR Powers. The RAP sets forth the ICO’s risk-based approach to regulatory action and explains the factors the ICO considers before taking regulatory action, how the ICO works with other regulators, and enforces the legislation for which it is responsible. Together, the three documents illustrate how the ICO aims to enforce information rights for data subjects in the UK.

Last month, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted a response to the UK Department for Digital, Culture, Media & Sport (“DCMS”) on its Consultation on Reforms to the Data Protection Regime (the “Response”). The Response also reflects views gathered from CIPL members during two industry roundtables organized in collaboration with DCMS to obtain feedback on the reform proposals. Key takeaways from the Response include the following:

On November 10, 2021, the UK Supreme Court issued its long-awaited judgment in the Lloyd v Google case. The decision is expected to make it difficult in practice for a future class action lawsuit that is brought on behalf of a class of individuals who have not actively opted in to being represented by the lead claimant to proceed under UK law.

On October 12, 2021, the Oxford County Court determined that a homeowner had breached the Data Protection Act 2018 (“DPA”) and UK General Data Protection Regulation (“UK GDPR”) by using Ring security cameras around his property. In Dr Mary Fairhurst v Mr Jon Woodard, Fairhurst claimed harassment, nuisance and breach of UK data protection law based on her former neighbor, Woodard’s, use of security cameras and lights around his property. While the claim in nuisance failed, the judge found for the claimant on the claims of harassment and breach of data protection law.

On September 27, 2021, the transition period allowing companies to continue using the old EU Standard Contractual Clauses (“SCCs”) for new transfers from the EU to a third country ended. Companies entering into new transfer agreements incorporating the SCCs must now use those published by the European Commission on June 4, 2021 (the “new SCCs”). Transfers from the UK that rely on SCCs must continue to use the old SCCs.

On September 10, 2021, the UK Government Department for Digital, Culture, Media & Sport (“DCMS”) launched a consultation on its proposed reforms to the UK data protection regime. The consultation reflects DCMS’s effort to deliver on Mission 2 of the National Data Strategy, which is “to secure a pro-growth and trusted data regime in the UK.” Organizations are encouraged to provide input on a range of data protection proposals, some of which are outlined below. The consultation will close on November 19, 2021, and the Centre for Information Policy Leadership (“CIPL”) will consult with members to prepare a formal response to the consultation.

On August 19, 2021, the UK Information Commissioner’s Office (“ICO”) approved the criteria for three certification schemes, as required under Article 42(5) of the UK General Data Protection Regulation (“UK GDPR”). Certification schemes are one method for organizations to demonstrate compliance with the UK GDPR.

On August 12, 2021, the UK Information Commissioner’s Office (“ICO”) published a call for views on data protection and employment practices. The ICO intends to update its employment practices code and associated guidance, originally produced under the Data Protection Act 1998, which has now been replaced by the UK General Data Protection Regulation (“UK GDPR”) and Data Protection Act 2018 (“DPA 2018”). The ICO is requesting responses from large and small employers, workers, volunteers, trades unions, employment dispute resolution bodies, recruitment agencies, professional and trade bodies, and suppliers of employment technology solutions.

On August 26, 2021, the UK Department of Culture, Media and Sport (“DCMS”) made news by publishing a document indicating its intent to begin making adequacy decisions for UK data transfers to foreign jurisdictions and by announcing its preferred candidate for the position of new UK Information Commissioner.

On August 9, 2021, the UK First-Tier Tribunal (General Regulatory Chamber) (“FTT”) reduced a fine imposed by the UK Information Commissioner’s Office (“ICO”) against Doorstep Dispensaree Ltd (“DDL”) from £275,000 to £92,000, a reduction of approximately two thirds. DDL, which supplies medicines to customers and care homes, was fined in December 2019 for failure to comply with the EU General Data Protection Regulation (“GDPR”). The ICO also issued an Enforcement Notice, requiring DDL to take certain actions to bring its processing into compliance.

On July 30, 2021, the UK High Court handed down its judgment in the case of Warren v DSG Retail Ltd [2021] EWHC 2168 (QB), determining that the claimant could not seek damages on the basis of misuse of personal information, breach of confidence or common law negligence following a data breach.

On June 29, 2021, the UK Department for Digital, Culture, Media and Sport (“DCMS”) published guidance for businesses on child online safety, which includes guidance on data protection and privacy, age-appropriate content, positive user interactions, and protecting children from online sexual exploitation and abuse.

In an article originally published on Practical Law, and reproduced with the permission of the publishers, Hunton Andrews Kurth London partner Bridget Treacy discusses the European Commission’s long-awaited, and now finalized, standard contractual clauses (“SCCs”) for international transfers of personal data made under the EU General Data Protection Regulation (“GDPR”).

On July 6, 2021, it was reported that British Airways (“BA”), which is owned by International Consolidated Airlines Group, S.A, had settled a UK class action lawsuit relating to its 2018 data breach, in which approximately 430,000 data subjects were affected. The UK Information Commissioner’s Office (“ICO”) previously fined BA £20 million for the same breach, after finding that BA had failed to process the personal data of its customers in a manner that ensured appropriate security, as required under Article 5(1)(f) and Article 32 of the EU General Data Protection Regulation. This amount was significantly reduced from the ICO’s proposed fine of more than £183 million.

On June 28, 2021, the European Commission (the “Commission”) adopted two adequacy decisions for the United Kingdom, one under the General Data Protection Regulation (“GDPR”) and another under the Law Enforcement Directive. Their adoption means organizations in the EU can continue to transfer personal data to organizations in the UK without restriction, and will not need to rely upon data transfer mechanisms, such as the EU Standard Contractual Clauses, to ensure an adequate level of protection. The adoption comes just before the conditional interim regime under the EU-UK Trade and Cooperation Agreement, under which data could flow freely from the EU to the UK, was set to expire on June 30, 2021.

On June 16, 2021, the UK Government’s Taskforce on Innovation, Growth and Regulatory Reform published an independent report containing recommendations to the Prime Minister on how the UK can reshape its approach to regulation in the wake of Brexit (the “Report”). Among wide-ranging proposals across a range of areas, the Report recommends replacing the UK General Data Protection Regulation (“UK GDPR”) with a new UK Framework of Citizen Data Rights. The proposed approach would aim to give individuals greater control over their personal data while also allowing increased data flows and driving growth in the digital economy. The Report will be considered by the Government’s Better Regulation Committee.

On May 25, 2021, the Grand Chamber of the European Court of Human Rights handed down its judgement in the case of Big Brother Watch and Others v. the United Kingdom, determining that the former surveillance regime in the UK violated Article 8 of the European Convention on Human Rights (“ECHR”), i.e., the right to respect for private and family life.

On June 4, 2021, the European Commission published the final version of the implementing decision on standard contractual clauses for transfers of personal data to third countries under the EU General Data Protection Regulation (“GDPR”), as well as the final version of the new standard contractual clauses (the “SCCs”). The European Commission had previously published draft versions of the implementing decision and the SCCs in November 2020.

On May 26, 2021, the Court of Appeal handed down its judgment in the case of R (Open Rights Group and the3million) v Secretary of State for the Home Department and Others [2021] EWCA Civ 800, finding that the UK 2018 Data Protection Act’s (“DPA 2018”) “immigration exemption” is unlawful.

On May 11, 2021, the European Parliament issued a press release requesting that the European Commission amend its draft decisions on UK adequacy to more closely align with EU court rulings and the opinion of the European Data Protection Board (“EDPB”). The request came after the Parliament’s Civil Liberties Committee (the “Committee”) passed a resolution evaluating the Commission’s approach regarding the adequacy of the UK’s data protection regime. The Members of European Parliament (“MEPs”) stated that if the Commission’s implementing decisions are adopted without amendment, transfers of personal data to the UK should be suspended when there is the potential for indiscriminate access to personal data.

On April 14, 2021, the European Data Protection Board (“EDPB”) announced that it had adopted its Opinion on the draft UK adequacy decision issued by the European Commission on February 19, 2021. The EDPB’s Opinion is non-binding but will be persuasive. The adequacy decision will be formally adopted if it is approved by the EU Member States acting through the European Council. If the adequacy decision is adopted, transfers of personal data from the EU to the UK may continue following the end of the post-Brexit transition period without the implementation of a data transfer mechanism under the EU General Data Protection Regulation (“GDPR”), such as Standard Contractual Clauses.

On April 9, 2021, the First-Tier Tribunal of the General Regulatory Chamber stayed proceedings in Ticketmaster UK Limited’s (“Ticketmaster’s”) appeal against a fine issued by the UK Information Commissioner’s Office (“ICO”) until 28 days after a judgment in civil litigation brought by 795 customers against Ticketmaster. The group action, which relates to the breach for which Ticketmaster was fined by the ICO, is currently before the High Court in England. As a result of the stay in proceedings, the appeal likely will not be heard before the Tribunal until mid to late 2023.

On March 19, 2021, the Secretary of State for Digital, Culture, Media & Sport (“DCMS”) signed a Memorandum of Understanding (“MoU”) with the UK Information Commissioner’s Office (the “ICO”) with respect to new UK adequacy assessments following the UK’s departure from the European Union. The MoU sets out how DCMS and third countries will negotiate adequacy decisions, referred to under the MoU as “adequacy regulations”. These permit the free transfer of personal data collected in the UK to the relevant “adequate” jurisdiction.

On February 19, 2021, the European Commission published a draft data protection adequacy decision relating to the UK. If the draft decision is adopted, organizations in the EU will be able to continue to transfer personal data to organizations in the UK without restriction, and will not need to rely upon data transfer mechanisms, such as the EU Standard Contractual Clauses, to ensure an adequate level of protection.

On January 19, 2021, the UK Information Commissioner’s Office (“ICO”) published its analysis of the application of the UK General Data Protection Regulation (the “UK GDPR”) to transfers from UK-based firms or branches that are registered, required to be registered or otherwise regulated by the U.S. Securities and Exchange Commission (“SEC”).

The recent UK case of Soriano v Forensic News and Others tested the territorial reach of the General Data Protection Regulation (“GDPR”) and represents the first UK judgment dealing with the territorial scope of the GDPR. This was a “service out” case, where the claimant, Walter T. Soriano, sought the Court’s permission under the UK Civil Procedure Rules to serve proceedings on the defendants, who were all domiciled in the U.S.

The global privacy and cybersecurity team at Hunton Andrews Kurth has authored multiple chapters of the 2021 Data Protection & Privacy guide by Lexology’s Getting the Deal Through. Partner Aaron P. Simpson and practice chair Lisa J. Sotto served as contributing editors of the ninth edition of the annual guide, which provides summary and analysis in key areas of law, practice and regulation for 150 jurisdictions across the globe.

On December 24, 2020, the European Union and the United Kingdom reached an agreement in principle on the historic EU-UK Trade and Cooperation Agreement (the “Trade Agreement”). For data protection purposes, there is a further transition period of up to six months to enable the European Commission to complete its adequacy assessment of the UK’s data protection laws. For the time being, personal data can continue to be exported from the EU to the UK without implementing additional safeguards.

On December 17, 2020, the UK Information Commissioner’s Office (“ICO”) published its Data Sharing Code of Practice (the “Code”), in accordance with its obligation to do so under the Data Protection Act 2018 (the “DPA”).

Hunton Andrews Kurth is pleased to announce the release of Sweet & Maxwell’s fifth edition of Data Protection Law and Practice, written by Rosemary Jay, Hunton Andrews Kurth’s senior consultant attorney. This edition has been re-written to provide a thorough review of the current state of data protection law in the UK, along with details of relevant background context.

On December 2, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the UK Department for Digital, Culture, Media and Sport’s (“DCMS”) UK National Data Strategy  (“NDS”) consultation.

On November 13, 2020, the UK Information Commissioner’s Office (“ICO”) fined Ticketmaster UK Limited (“Ticketmaster”) £1.25 million for failing to keep its customers’ personal data secure. The ICO found that Ticketmaster had failed to implement appropriate security measures to prevent a cyber attack, breaching the requirements of Articles 5(1)(f) and 32 of the EU General Data Protection Regulation (“GDPR”). The ICO acted as the lead supervisory authority with regard to the cross-border processing affected by this breach, and the penalty has been approved by the other EU data protection authorities through the GDPR’s cooperation process. Ticketmaster has indicated that it will appeal the fine.

On November 10, 2020, Hunton Andrews Kurth will host a webinar examining the data protection considerations that arise on the UK’s departure from the EU. The UK’s Brexit transition period ends on December 31, 2020, and it is not clear whether the EU will formally recognize the UK’s data protection regime as ‘adequate.’ What does this mean for companies’ plans to update their data transfer mechanisms? Is adequacy the holy grail it is widely believed to be? What other issues must be considered? Is there still time?

On October 22, 2020, the Centre for Information Policy Leadership (“CIPL”) at Hunton Andrews Kurth submitted its response to the UK Department for Digital, Culture, Media and Sport (“DCMS”) call for views and evidence on its review of representative actions under Section 189 of the Data Protection Act 2018 (“DPA”). Section 189 requires the UK government to review the operation of the representative action provisions of the DPA and provide a report to Parliament by November 25, 2020.

On October 27, 2020, the UK Information Commissioner’s Office (“ICO”) published a report following its investigation into data protection compliance in the direct marketing data broking sector, alongside its enforcement action against Experian. During the investigation, the ICO conducted audits of the direct marketing data broking businesses of the UK’s three largest credit reference agencies (“CRAs”) – Experian, Equifax and TransUnion – and found “significant data protection failures at each” that were “deeply embedded” within the businesses.

On October 30, 2020, the UK Information Commissioner’s Office (“ICO”) announced its fine of £18.4 (approximately $23.9 million) issued to Marriott International, Inc., (“Marriott”) for violations of the EU General Data Protection Regulation (“GDPR”). This is a significant decrease from the proposed fine of £99,200,396 (approximately $124 million) announced by the ICO in July 2019. The ICO’s fine only relates to the breach from the point at which the GDPR came into force in May 2018, and is the second largest fine levied by the ICO thus far under the GDPR. Marriott has not admitted liability for the breach, but has indicated that it does not plan to appeal.

On October 27, 2020, the UK Information Commissioner’s Office (“ICO”) published its enforcement notice against credit reference agency Experian Limited (“Experian”) under Section 149 of the Data Protection Act 2018 (“DPA”) (the “notice”). The notice requires Experian to make fundamental changes to its offline direct marketing practices, and was issued after the ICO undertook a two-year investigation into the use of personal data by data broking businesses Experian, Equifax and TransUnion.