FAQs

General terms & timelines

1. What is Brexit?

The term 'Brexit' generally refers to the process and action of the UK withdrawing from being a Member State of the European Union. Some of the primary compliance concerns from a data protection perspective include:

• what legal obligations will continue to be applicable;
• the impact on data transfers;
• new requirements for jurisdictional representatives; and
• whether there will be further legislative divergence between the EU and UK.

2. When did Brexit occur?

The UK left the EU on January 31, 2020. A transition period began immediately following this date, which concluded on December 31, 2020. The term 'Brexit' has been used varyingly to describe the process to which these events relate as well as the events themselves.

3. What is the Withdrawal Agreement?

The Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (2019/C 384 I/01) ('Withdrawal Agreement') is an agreement between the EU and UK based on Article 50 of the Treaty of the European Union. In essence, the Withdrawal Agreement is intended to ensure an orderly and phased process for the UK to withdraw from the EU, and covers matters such as financial arrangements, citizens' rights, and general common provisions. The Withdrawal Agreement also establishes the transition period.

Title VII, Articles 70 to 74 of the Withdrawal Agreement regulate the protection of personal data during and after the transition period. In general, these provisions and specifically Article 71, suggest that the UK will ensure essentially equivalent protection of personal data as under EU law.

The Withdrawal Agreement was developed alongside a non-binding Political Declaration that was intended to broadly outline the future relationship of the EU and the UK. In particular, Article 9 of the Political Declaration notes that the EU will endeavor to conduct an adequacy assessment of the UK 'as soon as possible' and to adopt decisions 'by the end of 2020.'

In this regard, please note that the EU Commission granted the UK an adequacy decision on June 28, 2021.

4. What is the UK GDPR?

The 'UK GDPR' refers to the incorporation of the EU's General Data Protection Regulation (Regulation (EU) 2016/679) ('GDPR') into UK law. It has also been used as a general term to refer to the UK's data protection regime that follows the transition period, as part of the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019, including the Data Protection Act 2018 ('Data Protection Act') as amended. These amendments ensure that practical data protection obligations for organizations within the UK remain substantially the same following the transition period. At the same time, the UK GDPR provides the UK with greater independence to review and adjust its data protection legislation.

5. What does 'adequacy status' mean?

The GDPR establishes a process through which the European Commission can identify if a non-EU/EEA jurisdiction, or third country, provides 'adequate' protection of personal data. Where such adequacy is considered to be provided, personal data may be transferred to the respective jurisdiction without additional mechanisms such as Binding Corporate Rules ('BCRs') or Standard Contractual Clauses ('SCCs').

The European Commission announced, on June 28, 2021, that it had adopted its adequacy decisions for the UK, one under the GDPR (Commission Implementing Decision of 28 June 2021 pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council) and one under the Data Protection Directive with Respect to Law Enforcement (Directive (EU) 2016/680) (Commission Implementing Decision of 28 June 2021 pursuant to Directive (EU) 2016/680 of the European Parliament and of the Council on the Adequate Protection of Personal Data by the United Kingdom).

For further information see: Data Transfers portal, Schrems II portal, and ICO guidance on data protection and EU.

Applicability

6. Which organizations can Brexit affect?

In relation to data protection, Brexit has the potential to affect any organization that processes personal data within the UK as well as any organization that transfers personal data either to or from the UK or any of the UK's associated territories.

7. Does the GDPR still apply in the UK following Brexit?

While the EU GDPR will not directly apply in the UK as it has done previously, the UK retained the majority of the provisions of the EU GDPR within UK law through the UK GDPR. As such, within the UK many of the same practical data protection obligations for organizations have continued largely unaltered. However, change could be on the horizon, following the UK Government consultation on an array of proposed changes to the national data protection regime. For further information see section 4 of these FAQs on Reform of the UK Data Protection Regime, most specifically question 22.

Nevertheless, the EU's GDPR will continue to have an indirect impact in the UK in the same manner that it does for any non-EU/EEA jurisdiction through its extraterritorial scope.

For further information see: EDPB Guidelines on territorial scope of the GDPR and the ICO guidance on EU/EEA representatives.

8. What data protection laws apply in the UK following Brexit?

The primary data protection legislation is the Data Protection Act and the UK GDPR. In addition, the UK law implementing the Directive on Privacy and Electronic Communications (2002/58/EC) (as amended) ('the ePrivacy Directive'), and the Privacy and Electronic Communications (EC Directive) Regulations 2003 ('PECR') remains fully in effect following Brexit.

However, in addition to Government consultation on proposed changes to the UK data protection regime, it bears noting that the Prime Minister's Office issued, on January 31, 2022, a press release (available here) outlining its plans to bring forward the 'Brexit Freedoms Bill' to mark the two-year anniversary of 'Getting Brexit Done'. This bill aims to make it easier to amend or remove outdated retained EU law, as current rules would require primary legislation for any minor or technical changes.

Please see the 'Applicable Laws' tab within this Brexit portal for the applicability of other laws.

For further information in the Government consultation, see section 4 of these FAQs on Reform of the UK Data Protection Regime, most specifically question 22.

9. What personal data processing activities does Brexit affect?

The effects of Brexit on the international data transfer landscape are already beginning to take effect. In this regard, please note that the EU Commission granted the UK adequacy status on June 28, 2021.

Beyond data transfers, however, further changes to UK law have been largely nominal as of yet; for activities based solely within the UK, the UK GDPR continues to impose largely equivalent provisions as the EU GDPR.

However, the UK Government has proposed wide-ranging changes to UK data protection law which would entail broader changes to operational requirements for organizations.

For further information on the UK Government's proposed changes, see section 4 of these FAQs on Reform of the UK Data Protection Regime, most specifically question 22.

10. Does Brexit include British Overseas Territories?

While the different associated relationships that the UK has with certain jurisdictions are complicated, in broad terms these associated jurisdictions are directly impacted by Brexit.

For example, as an overseas territory, Gibraltar has also left the European Union as part of Brexit and has transitioned GDPR provisions directly into its legislation through amendments to the Data Protection Act 2004 (as amended in 2021) ('the Act') and in passing the Gibraltar General Data Protection Regulation ('Gibraltar GDPR').

The Isle of Man is a crown dependency rather than an overseas territory and was not part of the European Union. However, it was part of the EU's customs area through the UK's association with the European Union until Brexit ended this association. The Isle of Man passed Regulations to ensure continued unhindered data transfers to the UK and Gibraltar.

For further information please see the 'Resources' tab within this Brexit portal.

11. Is the UK a third country to the EU?

The UK obtained, on June 28, 2021, adequacy status, and is therefore deemed as ensuring an adequate level of protection. Therefore, data transfers can take place without the need of any specific authorization.

For further information see: EU-UK: Analysing the UK adequacy decision and what's next for UK data protection, EU: European Commission adopts UK adequacy decision, Data Transfers portal and Schrems II portal.

Key post-Brexit obligations 

12. What have supervisory authorities suggested as key steps to maintaining compliance?

Guidance released from both UK and EU supervisory authorities emphasizes that organizations should begin by reviewing their current practices and procedures. This includes reviewing internal documentation, external documentation (such as privacy notices), and cross-border data transfers.

In addition, authorities have highlighted that organizations should assess the need for any EU- or UK-based representatives as well as ensuring that data protection officers ('DPOs') will be appropriately accessible from UK and EU/EEA establishments, if applicable.

Common documentation that the ICO notes may require updating include:

• privacy notices;
• references to 'union law' or similar in internal documentation;
• information related to international transfers in records of processing ('ROPA') or data protection impact assessments ('DPIAs'); and
• accessibility of DPOs.

The ICO has further emphasized that certain organizations will need to assess their processing activities and potentially make contact with different EU/EEA supervisory authorities or the ICO. The ICO notes that the UK is no longer a member of the EU's One-Stop-Shop mechanism and lead authority arrangements no longer apply to processing, except where it falls under the extraterritorial scope of the EU's GDPR. As a result, organizations will need to review whether their cross-border transfers of data will require relationships to be formed with additional supervisory authorities. In these cases, an organization will need to deal with both the ICO and the supervisory authority in the other state in which it is established.

In relation to data transfers, the ICO updated its guidance on international data transfers following its consultation on the International Data Transfer Agreement, UK Addendum to the EU SCCs, and the international transfer risk assessment and tool. See section 4 of these FAQs below for more information on the Government's reform of the UK data protection regime post-Brexit and the ICO's response.

For further information and information from supervisory authorities, see the 'Resources' tab in the Brexit portal.

13. We're based in the EU/EEA, what do we need to know?

The European Commission announced, on June 28, 2021, that it had adopted its adequacy decisions for the UK, one under the GDPR (Commission Implementing Decision of 28 June 2021 pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council) and one under the Data Protection Directive with Respect to Law Enforcement (Directive (EU) 2016/680) (Commission Implementing Decision of 28 June 2021 pursuant to Directive (EU) 2016/680 of the European Parliament and of the Council on the Adequate Protection of Personal Data by the United Kingdom).

The Information Commissioner at the time, Elizabeth Denham, outlined in a statement, "Approved adequacy means that businesses can continue to receive data from the EU without having to make any changes to their data protection practices. Adequacy is the best outcome as it means organizations can carry on with data protection as usual. And people will continue to enjoy the protections that their data will be used fairly, lawfully and transparently. The result is also a testament to the strength of the UK's data protection regime."

Article 27 of the UK GDPR states that the controller or the processor not established in the UK must designate in writing a representative in the UK. See also question 20 below on the same.

The general scope and applicability of the UK GDPR largely mirrors the EU GDPR (replacing terms such as 'the European Union' with 'the UK').

The EDPS has suggested the following actions may need to be assessed:

• implement additional transfer mechanisms;
• update internal documentation; and
• update data protection notice.

For further information see: EDPS Information Note on International Data Transfers after Brexit, ICO guidance on EU/EEA representatives and the 'Resources' tab in the Brexit portal.

14. We're based in the UK, what do we need to know?

You may need an EU representative if you are a UK-based controller or processor with no offices, branches or other establishments in the EU/EEA, and you are offering goods or services to individuals in the EU/EEA or monitoring the behavior of individuals in the EU/EEA.

The EU Commission announced, on July 28, 2021, that it had granted the UK adequacy under the GDPR.

Depending on the circumstances, the ICO has highlighted that cross-border data transfers across the EU may require an organization to form further relationships with relevant lead supervisory authorities following the transition period.

For further information see: Data Transfers portal, ICO guidance on data protection and EU and the 'Resources' tab in the Brexit portal.

15. We're based outside the EU/EEA and the UK, what do we need to know?

Following the ICO's consultation, the International Data Transfers, the UK Addendum to the EU SCCs, transfer risk assessment ('TRA'), the mechanisms used by exporters of restricted personal data from the UK to third countries or international organizations have changed in the UK. The IDTA replaces the use of EU SCCs. The IDTA and UK Addendum can be used immediately, although the TRA has not yet entered into force. See section 4 below on the reform to the UK data protection regime post-Brexit, most specifically questions 23 on IDTAs and 24 on TRAs.

However, please note that the EU Commission announced, on July 28, 2021, that it had granted the UK adequacy under the GDPR. Beyond deeming the same jurisdictions as the EU as adequate under the UK GDPR, the UK Government also announced as part of its consultation proposing reform to the UK data protection regime that it intends to expand the list of jurisdictions with adequacy decisions, initially prioritizing Australia, Dubai International Financial Centre, the Republic of Korea, Singapore, and the US.

Any UK-based processing operations of EU representatives should also be assessed.

For further information see: Data Transfers portal, ICO guidance on EU/EEA representatives, and the 'Resources' tab within the Brexit portal.

16. Do we need an EU representative?

You may need an EU representative if you are a UK-based controller or processor with no offices, branches or other establishments in the EU/EEA, and you are offering goods or services to individuals in the EU/EEA or monitoring the behavior of individuals in the EU/EEA. (Please note that these requirements apply to any third country).

For further information see: ICO guidance on EU/EEA representatives, and EDPB Guidelines on territorial scope of the GDPR.

17. Do we need a UK representative?

Article 27 of the UK GDPR states that the controller or the processor not established in the UK must designate in writing a representative in the UK.

The general scope and applicability of the UK GDPR largely mirrors the EU GDPR (replacing terms such as 'the European Union' with 'the UK').

For further information see: ICO guidance on EU/EEA representatives, and EDPB Guidelines on territorial scope of the GDPR..

Reform of the UK data protection regime

18. What is the National Data Strategy?

The DCMS released, on December 9. 2020, its National Data Strategy, consisting of five key missions to boost the better use of data across businesses, government, civil society, and individuals in the UK following its departure from the EU.

The missions consist of the following:

• Mission 1: Unlocking the value of data across the economy;
• Mission 2: Securing a pro-growth and trusted data regime;
• Mission 3: Transforming government's use of data to drive efficiency and improve public services;
• Mission 4: Ensuring the Security and resilience of the infrastructure on which data relies; and
• Mission 5: Championing the international flow of data.

19. What does the reform of the UK data regime entail?

The Department of Digital, Culture, Media & Sport ('DCMS') announced, on September 9, 2021, the launch of a wide-reaching consultation on proposed changes to the UK's data protection regime. The consultation functions as an initial step to delivering on Mission 2 of the National Data Strategy and presents proposals building on aspects of the UK GDPR with the objective of driving economic growth whilst maintaining high data protection standards.

The consultation itself, which concluded on 19 November 2021, consisted of the paper entitled Data: A New Direction ('the Consultation Paper') and an analysis of its expected impact.

The Consultation Paper included five main themes of proposals categorized into corresponding chapters:

1. Reducing barriers to responsible innovation: including proposals for a test for determining when data will be regarded as anonymous and an exhaustive list of legitimate interests for which organizations can process personal data without applying the balancing test;
2. Reducing burdens on businesses and delivering better outcomes for people: including proposals to introduce a fee for access to personal data held by all data controllers, and to change the accountability framework based on privacy management programs and as such removing requirements for appointment of a DPO, undertake a DPIA, prior consultation with the ICO, maintaining records of processing activities, and amending the threshold for reporting a data breach;
3. Boosting trade and reducing barriers to data flows: including proposals to add more countries to the list of adequate jurisdictions for general data processing purposes, to approach adequacy assessments with a focus on risk-based decision-making, relax the four-year review process, adaptable and tailored transfer mechanisms, and allowing repetitive use of derogations;
4. Delivering better public services; and
5. Reform of the ICO.

ICO issued, on October 6, 2021, its response to the DCMS's consultation on the UK data protection regime with its own document outlining points of agreement as well as possible development.

For further information see: UK: A new data direction - Accountability reforms, UK: ICO's response to the DCMS consultation on UK data regime, UK: Breakdown of ICO response to UK data regime review, UK: A new direction for data protection?, and UK: A new data direction.

20. What is an IDTA and the UK Addendum?

The Information Commissioner's Office ('ICO') launched, on October 11 2021, a public consultation on, among other things, its draft International Data Transfer Agreement ('IDTA') and International Data Transfer Addendum to the European Commission's SCCs.

The IDTA and Addendum are appropriate safeguards which replace the current SCCs for international transfer and take into account the findings of the Court of Justice of the European Union's judgment in Data Protection Commissioner v. Facebook Ireland Limited, Maximillian Schrems (C-311/18) ('the Schrems II Case')..

According to Chapter 1 of the Draft IDTA, the IDTA is a contract to use when making a restricted transfer of personal data to a country outside the UK.

The IDTA must be accompanied by a TRA (see question 24 below).

The IDTA and the UK Addendum, alongside a document containing transitional provisions, entered into force on March 21, 2022.

For further information see: International Data Transfer Agreement and Guidance, ICO guide to international transfers, UK: ICO guidance on third-country transfers - Part two: International data transfer agreements, and UK: Requirements for international data transfers under UK and EU data protection regimes.

21. What is a TRA?

According to the ICO's IDTA Guidance, a Transfer Risk Assessment ('TRA') checks that local laws and practices do not override the protections of an appropriate safeguard such as an IDTA.

If organizations are using an IDTA as an appropriate safeguard to transfer restricted data outside of the UK, a TRA must also be completed. A date for the entry into force of the TRA is currently unconfirmed.

For further information see: Schrems II Portal, ICO guide to international transfers, and Third Country Assessment Comparison, UK: ICO guidance on third-country transfers - Part one: Transfer risk assessments.

22. What is a restricted transfer?

The ICO refers to a "restricted transfer" refers specifically to the movement of personal data to entities or recipients located outside the UK, which are separate controllers or processors and legally distinct from the organization transferring the data (ICO A guide to international transfers).

23. Can we still use the EU SCCs?

The International Data Transfer Addendum to the EU Commission Standard Contractual Clauses ('UK Addendum') was issued by the ICO to incorporate the EU SCCs. The Addendum amends the EU SCCs to include UK laws and so that any dispute arising from the relevant contract be resolved by the UK courts.

The UK Addendum entered into force on May 21, 2022. Contracts concluded on or before September 21, 2022, on the basis of any EU SCCs shall continue to provide appropriate safeguards for the purpose of Art 46(1) of the UK GDPR until March 21, 2024, provided that the processing operations that are the subject matter of the contract remain unchanged and reliance on those clauses ensures that the transfer of personal data is subject to appropriate safeguards.

For further information please see: UK: Requirements for international data transfers under UK and EU data protection regimes and ICO A guide to international transfers.

24. What mechanisms will we be able to use for cross-border data transfers?

Mechanisms that an organization can utilize will depend on various factors, including the location of their establishment.

Adequacy

The European Commission granted, on June 28, 2021, adequacy status to the UK. Data transfers between the EU and the UK can take place without the need of specific authorization.

In addition, the jurisdictions covered by others EU adequacy decisions, such as Argentina, Canada, Israel, Japan, among others, have mostly passed resolutions or amended guidance/ legislation to maintain flows of data with the UK following the transition period. The ICO discusses maintaining data flows with these jurisdictions at the end of its international data transfers Brexit guidance, and emphasises consulting local laws.

Furthermore, the UK Government announced, on June 28, 2021, that "The UK, which now operates a fully independent data policy, has [...] recognised the EU and EEA member states as ‘adequate,' as part of its commitment to establish a smooth transition for the UK’s departure from the bloc. The Government plans to promote the free flow of personal data globally and across borders, including through ambitious new trade deals and through new data adequacy agreements with some of the fastest growing economies, while ensuring people’s data continues to be protected to a high standard. All future decisions will be based on what maximises innovation and keeps up with evolving tech. As such, the government’s approach will seek to minimise burdens on organisations seeking to use data to tackle some of the most pressing global issues [...]"

Adequacy regulations may be issued under Section 17A of the Data Protection Act.

In addition, on September 21, 2023, the DSIT published the Data Protection (Adequacy) (United States of America) Regulations 2023 ('UK-US Data Bridge') for the UK Extension to the EU-US Data Privacy Framework (UK Extension). In particular, the UK-US Data Bridge provides that for the purposes of Part 2 of the Data Protection Act and the UK GDPR, the Secretary of State designates the US as ensuring an adequate level of personal data protection for data transfers that meet the following criteria:

• the transfer is to a person in the US listed as participating in the UK Extension to the EU-US Data Privacy Framework (EU-US DPF); and

the transfer will be subject to the EU-US DPF Principles upon receipt by the recipient.For further information please see: ICO A guide to international transfers and International: UK-US Data Bridge, an extension to the EU-US DPF.

Appropriate safeguards

Article 46 of the UK GDPR provides for appropriate safeguards which controllers or processors may use to transfer personal data to a third country or an international organization in the absence of an adequacy regulation issued under Section 17A of the Data Protection Act.

Article 46(2) of the UK GDPR allows for the use of Binding Corporate Rules, standard data protection clauses from the Secretary of State or ICO, an approved code of conduct, or approved certification mechanism, without specific authorization from the ICO. With authorization from the ICO, organizations may use tailored contractual clauses.

In relation to SCCs, please refer to the preceding questions in these FAQs regarding the IDTA and UK Addendum.

Derogations

In the absence of adequacy regulations or appropriate safeguards, transfers can take place on the basis of derogations under Article 49 of the UK GDPR, similar to those as under the EU's GDPR with amendments from applicability of EU law to UK law where relevant.

As part of the Government's reform of the UK data regime, the Government proposed relaxing the repetitive use requirement for use of derogations.

For further information see: Data Transfers portal and Schrems II portal.

Data Reform Bill

25. What is the Data Reform Bill and when will it pass?

On November 7, 2023, the UK Government published a policy paper titled 'The King's Speech 2023: background briefing notes' which highlights that the Ministers will introduce the Data Protection and Digital Information Bill ('the Bill') to encourage innovation in technologies such as machine learning.

The UK Parliament, on November 8, 2023, re-introduced the Bill which carries over the Data Protection and Digital Information (No. 2) Bill (Bill No.2), and reintroduced it in the 2023-24 session. In particular, on November 7, 2023, the Parliament confirmed that the Public Bill Committee completed its work and reported to the House of Commons in session 2022-23 regarding Bill No.2 including amendments. The Parliament also noted that the Bill is now due to have its report stage and third reading on a date to be announced, detailing that amendments can be made to it at the Report Stage.

You can track the progress of the bill here.

26. What is the purpose of the Data Reform Bill?

The accompanying Explanatory Notes to the Bill provide that the Bill is intended to update and simplify the UK's data protection framework, with a view to reducing burdens on organizations, while maintaining high data protection standards. In addition, the Explanatory Notes highlight that the Bill would provide organizations with greater flexibility on how to comply with certain aspects of data protection legislation, improve the clarity of the framework, particularly for research organizations, and provide more certainty and stability for cross-border flows of personal data.

27. What are the highlighted benefits of the Data Reform Bill?

The 'King's Speech 2023: background briefing notes' provides that the Bill will reduce burdens on businesses, remove unnecessary barriers placed on scientific researchers, boost the economy by £4.7 billion over 10 years, and enable innovations that advance the strength and prosperity of society by:

• allowing businesses to protect personal data in more proportionate and practical ways than under the GDPR;
• clarifying and improving rules around using personal data for scientific research;
• establishing a framework for secure digital verification services;
• enabling 'smart data' schemes across the economy; and
• ensuring the better use of data in the delivery of health and adult social care, law enforcement, security, and other government services.

28. What will the Data Reform Bill cover?

The accompanying Explanatory Notes to the Bill provide that the Bill is intended to update and simplify the UK's data protection framework with a view to reducing burdens on organizations while maintaining high data protection standards. Furthermore, the Bill would, amongst other things:

• provide organizations with greater flexibility on how to comply with certain aspects of the data protection legislation;
• improve the clarity of the framework, particularly for research organizations; and
• provide more certainty and stability for cross-border flows of personal data.

29. What will be the territorial scope and application of the Data Reform Bill?

The Bill will, in the main, extend and apply across the UK, with some measures extending and applying to England and Wales only.

For the original and latest revised versions of the Data Protection Act 2018 as well as Schedules 19 and 20 on minor and consequential amendments to other acts and transitional provisions from the 1998 Data Protection Act, respectively, please see here.

An Act to make provision for the regulation of the processing of information relating to individuals; to make provision in connection with the Information Commissioner's functions under certain regulations relating to information; to make provision for a direct marketing code of practice; and for connected purposes.

[23rd May 2018]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

PART 1 Preliminary

1 Overview

(1)This Act makes provision about the processing of personal data.

(2)Most processing of personal data is subject to the GDPR.

(3)Part 2 supplements the GDPR (see Chapter 2) and applies a broadly equivalent regime to certain types of processing to which the GDPR does not apply (see Chapter 3).

(4)Part 3 makes provision about the processing of personal data by competent authorities for law enforcement purposes and implements the Law Enforcement Directive.

(5)Part 4 makes provision about the processing of personal data by the intelligence services.

(6)Part 5 makes provision about the Information Commissioner.

(7)Part 6 makes provision about the enforcement of the data protection legislation.

(8)Part 7 makes supplementary provision, including provision about the application of this Act to the Crown and to Parliament.

2 Protection of personal data

(1)The GDPR, the applied GDPR and this Act protect individuals with regard to the processing of personal data, in particular by—

(a)requiring personal data to be processed lawfully and fairly, on the basis of the data subject's consent or another specified basis,

(b)conferring rights on the data subject to obtain information about the processing of personal data and to require inaccurate personal data to be rectified, and

(c)conferring functions on the Commissioner, giving the holder of that office responsibility for monitoring and enforcing their provisions.

(2)When carrying out functions under the GDPR, the applied GDPR and this Act, the Commissioner must have regard to the importance of securing an appropriate level of protection for personal data, taking account of the interests of data subjects, controllers and others and matters of general public interest.

3 Terms relating to the processing of personal data

(1)This section defines some terms used in this Act.

(2)“Personal data” means any information relating to an identified or identifiable living individual (subject to subsection (14)(c)).

(3)“Identifiable living individual” means a living individual who can be identified, directly or indirectly, in particular by reference to—

(a)an identifier such as a name, an identification number, location data or an online identifier, or

(b)one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the individual.

(4)“Processing”, in relation to information, means an operation or set of operations which is performed on information, or on sets of information, such as—

(a)collection, recording, organisation, structuring or storage,

(b)adaptation or alteration,

(c)retrieval, consultation or use,

(d)disclosure by transmission, dissemination or otherwise making available,

(e)alignment or combination, or

(f)restriction, erasure or destruction,

(subject to subsection (14)(c) and sections 5(7), 29(2) and 82(3), which make provision about references to processing in the different Parts of this Act).

(5)“Data subject” means the identified or identifiable living individual to whom personal data relates.

(6)“Controller” and “processor”, in relation to the processing of personal data to which Chapter 2 or 3 of Part 2, Part 3 or Part 4 applies, have the same meaning as in that Chapter or Part (see sections 5, 6, 32 and 83 and see also subsection (14)(d)).

(7)“Filing system” means any structured set of personal data which is accessible according to specific criteria, whether held by automated means or manually and whether centralised, decentralised or dispersed on a functional or geographical basis.

(8)“The Commissioner” means the Information Commissioner (see section 114).

(9)“The data protection legislation” means—

(a)the GDPR,

(b)the applied GDPR,

(c)this Act,

(d)regulations made under this Act, and

(e)regulations made under section 2(2) of the European Communities Act 1972 which relate to the GDPR or the Law Enforcement Directive.

(10)“The GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation).

(11)“The applied GDPR” means the GDPR as applied by Chapter 3 of Part 2.

(12)“The Law Enforcement Directive” means Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA.

(13)“The Data Protection Convention” means the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data which was opened for signature on 28 January 1981, as amended up to the day on which this Act is passed.

(14)In Parts 5 to 7, except where otherwise provided—

(a)references to the GDPR are to the GDPR read with Chapter 2 of Part 2 and include the applied GDPR read with Chapter 3 of Part 2 ;

(b)references to Chapter 2 of Part 2, or to a provision of that Chapter, include that Chapter or that provision as applied by Chapter 3 of Part 2;

(c)references to personal data, and the processing of personal data, are to personal data and processing to which Chapter 2 or 3 of Part 2, Part 3 or Part 4 applies;

(d)references to a controller or processor are to a controller or processor in relation to the processing of personal data to which Chapter 2 or 3 of Part 2, Part 3 or Part 4 applies.

(15)There is an index of defined expressions in section 206.

PART 2 General processing

CHAPTER 1 Scope and definitions

4 Processing to which this Part applies

(1)This Part is relevant to most processing of personal data.

(2)Chapter 2 of this Part—

(a)applies to the types of processing of personal data to which the GDPR applies by virtue of Article 2 of the GDPR, and

(b)supplements, and must be read with, the GDPR.

(3)Chapter 3 of this Part—

(a)applies to certain types of processing of personal data to which the GDPR does not apply (see section 21), and

(b)makes provision for a regime broadly equivalent to the GDPR to apply to such processing.

5 Definitions

(1)Terms used in Chapter 2 of this Part and in the GDPR have the same meaning in Chapter 2 as they have in the GDPR.

(2)In subsection (1), the reference to a term's meaning in the GDPR is to its meaning in the GDPR read with any provision of Chapter 2 which modifies the term's meaning for the purposes of the GDPR.

(3)Subsection (1) is subject to any provision in Chapter 2 which provides expressly for the term to have a different meaning and to section 204.

(4)Terms used in Chapter 3 of this Part and in the applied GDPR have the same meaning in Chapter 3 as they have in the applied GDPR.

(5)In subsection (4), the reference to a term's meaning in the applied GDPR is to its meaning in the GDPR read with any provision of Chapter 2 (as applied by Chapter 3 ) or Chapter 3 which modifies the term's meaning for the purposes of the applied GDPR.

(6)Subsection (4) is subject to any provision in Chapter 2 (as applied by Chapter 3 ) or Chapter 3 which provides expressly for the term to have a different meaning.

(7)A reference in Chapter 2 or Chapter 3 of this Part to the processing of personal data is to processing to which the Chapter applies.

(8)Sections 3 and 205 include definitions of other expressions used in this Part.

CHAPTER 2 The GDPR

Meaning of certain terms used in the GDPR

6 Meaning of “controller”

(1)The definition of “controller” in Article 4(7) of the GDPR has effect subject to—

(a)subsection (2),

(b)section 209, and

(c)section 210.

(2)For the purposes of the GDPR, where personal data is processed only—

(a)for purposes for which it is required by an enactment to be processed, and

(b)by means by which it is required by an enactment to be processed,

the person on whom the obligation to process the data is imposed by the enactment (or, if different, one of the enactments) is the controller.

7 Meaning of “public authority” and “public body”

(1)For the purposes of the GDPR, the following (and only the following) are “public authorities” and “public bodies” under the law of the United Kingdom—

(a)a public authority as defined by the Freedom of Information Act 2000,

(b)a Scottish public authority as defined by the Freedom of Information (Scotland) Act 2002 (asp 13), and

(c)an authority or body specified or described by the Secretary of State in regulations,

subject to subsections (2), (3) and (4).

(2)An authority or body that falls within subsection (1) is only a “public authority” or “public body” for the purposes of the GDPR when performing a task carried out in the public interest or in the exercise of official authority vested in it.

(3)The references in subsection (1)(a) and (b) to public authorities and Scottish public authorities as defined by the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002 (asp 13) do not include any of the following that fall within those definitions—

(a)a parish council in England;

(b)a community council in Wales;

(c)a community council in Scotland;

(d)a parish meeting constituted under section 13 of the Local Government Act 1972;

(e)a community meeting constituted under section 27 of that Act;

(f)charter trustees constituted—

(i)under section 246 of that Act,

(ii)under Part 1 of the Local Government and Public Involvement in Health Act 2007, or

(iii)by the Charter Trustees Regulations 1996 (S.I. 1996/263).

(4)The Secretary of State may by regulations provide that a person specified or described in the regulations that is a public authority described in subsection (1)(a) or (b) is not a “public authority” or “public body” for the purposes of the GDPR.

(5)Regulations under this section are subject to the affirmative resolution procedure.

Lawfulness of processing

8 Lawfulness of processing: public interest etc

In Article 6(1) of the GDPR (lawfulness of processing), the reference in point (e) to processing of personal data that is necessary for the performance of a task carried out in the public interest or in the exercise of the controller's official authority includes processing of personal data that is necessary for—

(a)the administration of justice,

(b)the exercise of a function of either House of Parliament,

(c)the exercise of a function conferred on a person by an enactment or rule of law,

(d)the exercise of a function of the Crown, a Minister of the Crown or a government department, or

(e)an activity that supports or promotes democratic engagement.

9 Child's consent in relation to information society services

In Article 8(1) of the GDPR (conditions applicable to child's consent in relation to information society services)—

(a)references to “16 years” are to be read as references to “13 years”, and

(b)the reference to “information society services” does not include preventive or counselling services.

Special categories of personal data

10 Special categories of personal data and criminal convictions etc data

(1)Subsections (2) and (3) make provision about the processing of personal data described in Article 9(1) of the GDPR (prohibition on processing of special categories of personal data) in reliance on an exception in one of the following points of Article 9(2)—

(a)point (b) (employment, social security and social protection);

(b)point (g) (substantial public interest);

(c)point (h) (health and social care);

(d)point (i) (public health);

(e)point (j) (archiving, research and statistics).

(2)The processing meets the requirement in point (b), (h), (i) or (j) of Article 9(2) of the GDPR for authorisation by, or a basis in, the law of the United Kingdom or a part of the United Kingdom only if it meets a condition in Part 1 of Schedule 1.

(3)The processing meets the requirement in point (g) of Article 9(2) of the GDPR for a basis in the law of the United Kingdom or a part of the United Kingdom only if it meets a condition in Part 2 of Schedule 1.

(4)Subsection (5) makes provision about the processing of personal data relating to criminal convictions and offences or related security measures that is not carried out under the control of official authority.

(5)The processing meets the requirement in Article 10 of the GDPR for authorisation by the law of the United Kingdom or a part of the United Kingdom only if it meets a condition in Part 1, 2 or 3 of Schedule 1.

(6)The Secretary of State may by regulations—

(a)amend Schedule 1—

(i)by adding or varying conditions or safeguards, and

(ii)by omitting conditions or safeguards added by regulations under this section, and

(b)consequentially amend this section.

(7)Regulations under this section are subject to the affirmative resolution procedure.

11 Special categories of personal data etc: supplementary

(1)For the purposes of Article 9(2)(h) of the GDPR (processing for health or social care purposes etc), the circumstances in which the processing of personal data is carried out subject to the conditions and safeguards referred to in Article 9(3) of the GDPR (obligation of secrecy) include circumstances in which it is carried out—

(a)by or under the responsibility of a health professional or a social work professional, or

(b)by another person who in the circumstances owes a duty of confidentiality under an enactment or rule of law.

(2)In Article 10 of the GDPR and section 10, references to personal data relating to criminal convictions and offences or related security measures include personal data relating to—

(a)the alleged commission of offences by the data subject, or

(b)proceedings for an offence committed or alleged to have been committed by the data subject or the disposal of such proceedings, including sentencing.

Rights of the data subject

12 Limits on fees that may be charged by controllers

(1)The Secretary of State may by regulations specify limits on the fees that a controller may charge in reliance on—

(a)Article 12(5) of the GDPR (reasonable fees when responding to manifestly unfounded or excessive requests), or

(b)Article 15(3) of the GDPR (reasonable fees for provision of further copies).

(2)The Secretary of State may by regulations—

(a)require controllers of a description specified in the regulations to produce and publish guidance about the fees that they charge in reliance on those provisions, and

(b)specify what the guidance must include.

(3)Regulations under this section are subject to the negative resolution procedure.

13 Obligations of credit reference agencies

(1)This section applies where a controller is a credit reference agency (within the meaning of section 145(8) of the Consumer Credit Act 1974).

(2)The controller's obligations under Article 15(1) to (3) of the GDPR (confirmation of processing, access to data and safeguards for third country transfers) are taken to apply only to personal data relating to the data subject's financial standing, unless the data subject has indicated a contrary intention.

(3)Where the controller discloses personal data in pursuance of Article 15(1) to (3) of the GDPR, the disclosure must be accompanied by a statement informing the data subject of the data subject's rights under section 159 of the Consumer Credit Act 1974 (correction of wrong information).

14 Automated decision-making authorised by law: safeguards

(1)This section makes provision for the purposes of Article 22(2)(b) of the GDPR (exception from Article 22(1) of the GDPR for significant decisions based solely on automated processing that are authorised by law and subject to safeguards for the data subject's rights, freedoms and legitimate interests).

(2)A decision is a “significant decision” for the purposes of this section if, in relation to a data subject, it—

(a)produces legal effects concerning the data subject, or

(b)similarly significantly affects the data subject.

(3)A decision is a “qualifying significant decision” for the purposes of this section if—

(a)it is a significant decision in relation to a data subject,

(b)it is required or authorised by law, and

(c)it does not fall within Article 22(2)(a) or (c) of the GDPR (decisions necessary to a contract or made with the data subject's consent).

(4)Where a controller takes a qualifying significant decision in relation to a data subject based solely on automated processing—

(a)the controller must, as soon as reasonably practicable, notify the data subject in writing that a decision has been taken based solely on automated processing, and

(b)the data subject may, before the end of the period of 1 month beginning with receipt of the notification, request the controller to—

(i)reconsider the decision, or

(ii)take a new decision that is not based solely on automated processing.

(5)If a request is made to a controller under subsection (4), the controller must, within the period described in Article 12(3) of the GDPR—

(a)consider the request, including any information provided by the data subject that is relevant to it,

(b)comply with the request, and

(c)by notice in writing inform the data subject of—

(i)the steps taken to comply with the request, and

(ii)the outcome of complying with the request.

(6)In connection with this section, a controller has the powers and obligations under Article 12 of the GDPR (transparency, procedure for extending time for acting on request, fees, manifestly unfounded or excessive requests etc) that apply in connection with Article 22 of the GDPR.

(7)The Secretary of State may by regulations make such further provision as the Secretary of State considers appropriate to provide suitable measures to safeguard a data subject's rights, freedoms and legitimate interests in connection with the taking of qualifying significant decisions based solely on automated processing.

(8)Regulations under subsection (7)—

(a)may amend this section, and

(b)are subject to the affirmative resolution procedure.

Restrictions on data subject's rights

15 Exemptions etc

(1)Schedules 2, 3 and 4 make provision for exemptions from, and restrictions and adaptations of the application of, rules of the GDPR.

(2)In Schedule 2—

(a)Part 1 makes provision adapting or restricting the application of rules contained in Articles 13 to 21 and 34 of the GDPR in specified circumstances, as allowed for by Article 6(3) and Article 23(1) of the GDPR;

(b)Part 2 makes provision restricting the application of rules contained in Articles 13 to 21 and 34 of the GDPR in specified circumstances, as allowed for by Article 23(1) of the GDPR;

(c)Part 3 makes provision restricting the application of Article 15 of the GDPR where this is necessary to protect the rights of others, as allowed for by Article 23(1) of the GDPR;

(d)Part 4 makes provision restricting the application of rules contained in Articles 13 to 15 of the GDPR in specified circumstances, as allowed for by Article 23(1) of the GDPR;

(e)Part 5 makes provision containing exemptions or derogations from Chapters II, III, IV, V and VII of the GDPR for reasons relating to freedom of expression, as allowed for by Article 85(2) of the GDPR;

(f)Part 6 makes provision containing derogations from rights contained in Articles 15, 16, 18, 19, 20 and 21 of the GDPR for scientific or historical research purposes, statistical purposes and archiving purposes, as allowed for by Article 89(2) and (3) of the GDPR.

(3)Schedule 3 makes provision restricting the application of rules contained in Articles 13 to 21 of the GDPR to health, social work, education and child abuse data, as allowed for by Article 23(1) of the GDPR.

(4)Schedule 4 makes provision restricting the application of rules contained in Articles 13 to 21 of the GDPR to information the disclosure of which is prohibited or restricted by an enactment, as allowed for by Article 23(1) of the GDPR.

(5)In connection with the safeguarding of national security and with defence, see Chapter 3 of this Part and the exemption in section 26.

16 Power to make further exemptions etc by regulations

(1)The following powers to make provision altering the application of the GDPR may be exercised by way of regulations made by the Secretary of State under this section—

(a)the power in Article 6(3) for Member State law to lay down a legal basis containing specific provisions to adapt the application of rules of the GDPR where processing is necessary for compliance with a legal obligation, for the performance of a task in the public interest or in the exercise of official authority;

(b)the power in Article 23(1) to make a legislative measure restricting the scope of the obligations and rights mentioned in that Article where necessary and proportionate to safeguard certain objectives of general public interest;

(c)the power in Article 85(2) to provide for exemptions or derogations from certain Chapters of the GDPR where necessary to reconcile the protection of personal data with the freedom of expression and information.

(2)Regulations under this section may—

(a)amend Schedules 2 to 4—

(i)by adding or varying provisions, and

(ii)by omitting provisions added by regulations under this section, and

(b)consequentially amend section 15.

(3)Regulations under this section are subject to the affirmative resolution procedure.

Accreditation of certification providers

17 Accreditation of certification providers

(1)Accreditation of a person as a certification provider is only valid when carried out by—

(a)the Commissioner, or

(b)the national accreditation body.

(2)The Commissioner may only accredit a person as a certification provider where the Commissioner—

(a)has published a statement that the Commissioner will carry out such accreditation, and

(b)has not published a notice withdrawing that statement.

(3)The national accreditation body may only accredit a person as a certification provider where the Commissioner—

(a)has published a statement that the body may carry out such accreditation, and

(b)has not published a notice withdrawing that statement.

(4)The publication of a notice under subsection (2)(b) or (3)(b) does not affect the validity of any accreditation carried out before its publication.

(5)Schedule 5 makes provision about reviews of, and appeals from, a decision relating to accreditation of a person as a certification provider.

(6)The national accreditation body may charge a reasonable fee in connection with, or incidental to, the carrying out of the body's functions under this section, Schedule 5 and Article 43 of the GDPR.

(7)The national accreditation body must provide the Secretary of State with such information relating to its functions under this section, Schedule 5 and Article 43 of the GDPR as the Secretary of State may reasonably require.

(8)In this section—

“certification provider” means a person who issues certification for the purposes of Article 42 of the GDPR;

“the national accreditation body” means the national accreditation body for the purposes of Article 4(1) of Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93.

Transfers of personal data to third countries etc

18 Transfers of personal data to third countries etc

(1)The Secretary of State may by regulations specify, for the purposes of Article 49(1)(d) of the GDPR—

(a)circumstances in which a transfer of personal data to a third country or international organisation is to be taken to be necessary for important reasons of public interest, and

(b)circumstances in which a transfer of personal data to a third country or international organisation which is not required by an enactment is not to be taken to be necessary for important reasons of public interest.

(2)The Secretary of State may by regulations restrict the transfer of a category of personal data to a third country or international organisation where—

(a)the transfer is not authorised by an adequacy decision under Article 45(3) of the GDPR, and

(b)the Secretary of State considers the restriction to be necessary for important reasons of public interest.

(3)Regulations under this section—

(a)are subject to the made affirmative resolution procedure where the Secretary of State has made an urgency statement in respect of them;

(b)are otherwise subject to the affirmative resolution procedure.

(4)For the purposes of this section, an urgency statement is a reasoned statement that the Secretary of State considers it desirable for the regulations to come into force without delay.

Specific processing situations

19 Processing for archiving, research and statistical purposes: safeguards

(1)This section makes provision about—

(a)processing of personal data that is necessary for archiving purposes in the public interest,

(b)processing of personal data that is necessary for scientific or historical research purposes, and

(c)processing of personal data that is necessary for statistical purposes.

(2)Such processing does not satisfy the requirement in Article 89(1) of the GDPR for the processing to be subject to appropriate safeguards for the rights and freedoms of the data subject if it is likely to cause substantial damage or substantial distress to a data subject.

(3)Such processing does not satisfy that requirement if the processing is carried out for the purposes of measures or decisions with respect to a particular data subject, unless the purposes for which the processing is necessary include the purposes of approved medical research.

(4)In this section—

“approved medical research” means medical research carried out by a person who has approval to carry out that research from—

(a)a research ethics committee recognised or established by the Health Research Authority under Chapter 2 of Part 3 of the Care Act 2014, or

(b)a body appointed by any of the following for the purpose of assessing the ethics of research involving individuals—

(i)the Secretary of State, the Scottish Ministers, the Welsh Ministers, or a Northern Ireland department;

(ii)a relevant NHS body;

(iii)United Kingdom Research and Innovation or a body that is a Research Council for the purposes of the Science and Technology Act 1965;

(iv)an institution that is a research institution for the purposes of Chapter 4A of Part 7 of the Income Tax (Earnings and Pensions) Act 2003 (see section 457 of that Act);

“relevant NHS body” means—

(a)an NHS trust or NHS foundation trust in England,

(b)an NHS trust or Local Health Board in Wales,

(c)a Health Board or Special Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978,

(d)the Common Services Agency for the Scottish Health Service, or

(e)any of the health and social care bodies in Northern Ireland falling within paragraphs (a) to (e) of section 1(5) of the Health and Social Care (Reform) Act (Northern Ireland) 2009 (c. 1 (N.I.)).

(5)The Secretary of State may by regulations change the meaning of “approved medical research” for the purposes of this section, including by amending subsection (4).

(6)Regulations under subsection (5) are subject to the affirmative resolution procedure.

Minor definition

20 Meaning of “court”

Section 5(1) (terms used in this Chapter to have the same meaning as in the GDPR) does not apply to references in this Chapter to a court and, accordingly, such references do not include a tribunal.

CHAPTER 3 Other general processing

Scope

21 Processing to which this Chapter applies

(1)This Chapter applies to the automated or structured processing of personal data in the course of—

(a)an activity which is outside the scope of European Union law, or

(b)an activity which falls within the scope of Article 2(2)(b) of the GDPR (common foreign and security policy activities),

provided that the processing is not processing by a competent authority for any of the law enforcement purposes (as defined in Part 3) or processing to which Part 4 (intelligence services processing) applies.

(2)This Chapter also applies to the manual unstructured processing of personal data held by an FOI public authority.

(3)This Chapter does not apply to the processing of personal data by an individual in the course of a purely personal or household activity.

(4)In this section—

“the automated or structured processing of personal data” means—

(a)the processing of personal data wholly or partly by automated means, and

(b)the processing otherwise than by automated means of personal data which forms part of a filing system or is intended to form part of a filing system;

“the manual unstructured processing of personal data” means the processing of personal data which is not the automated or structured processing of personal data.

(5)In this Chapter, “FOI public authority” means—

(a)a public authority as defined in the Freedom of Information Act 2000, or

(b)a Scottish public authority as defined in the Freedom of Information (Scotland) Act 2002 (asp 13).

(6)References in this Chapter to personal data “held” by an FOI public authority are to be interpreted—

(a)in relation to England and Wales and Northern Ireland, in accordance with section 3(2) of the Freedom of Information Act 2000, and

(b)in relation to Scotland, in accordance with section 3(2), (4) and (5) of the Freedom of Information (Scotland) Act 2002 (asp 13),

but such references do not include information held by an intelligence service (as defined in section 82) on behalf of an FOI public authority.

(7)But personal data is not to be treated as “held” by an FOI public authority for the purposes of this Chapter, where—

(a)section 7 of the Freedom of Information Act 2000 prevents Parts 1 to 5 of that Act from applying to the personal data, or

(b)section 7(1) of the Freedom of Information (Scotland) Act 2002 (asp 13) prevents that Act from applying to the personal data.

Application of the GDPR

22 Application of the GDPR to processing to which this Chapter applies

(1)The GDPR applies to the processing of personal data to which this Chapter applies but as if its Articles were part of an Act extending to England and Wales, Scotland and Northern Ireland.

(2)Chapter 2 of this Part applies for the purposes of the applied GDPR as it applies for the purposes of the GDPR.

(3)In this Chapter, “the applied Chapter 2 ” means Chapter 2 of this Part as applied by this Chapter.

(4)Schedule 6 contains provision modifying—

(a)the GDPR as it applies by virtue of subsection (1) (see Part 1);

(b)Chapter 2 of this Part as it applies by virtue of subsection (2) (see Part 2).

(5)A question as to the meaning or effect of a provision of the applied GDPR, or the applied Chapter 2 , is to be determined consistently with the interpretation of the equivalent provision of the GDPR, or Chapter 2 of this Part, as it applies otherwise than by virtue of this Chapter, except so far as Schedule 6 requires a different interpretation.

23 Power to make provision in consequence of regulations related to the GDPR

(1)The Secretary of State may by regulations make provision in connection with the processing of personal data to which this Chapter applies which is equivalent to that made by GDPR regulations, subject to such modifications as the Secretary of State considers appropriate.

(2)In this section, “GDPR regulations” means regulations made under section 2(2) of the European Communities Act 1972 which make provision relating to the GDPR.

(3)Regulations under subsection (1) may apply a provision of GDPR regulations, with or without modification.

(4)Regulations under subsection (1) may amend or repeal a provision of—

(a)the applied GDPR;

(b)this Chapter;

(c)Parts 5 to 7, in so far as they apply in relation to the applied GDPR.

(5)Regulations under this section are subject to the affirmative resolution procedure.

Exemptions etc

24 Manual unstructured data held by FOI public authorities

(1)The provisions of the applied GDPR and this Act listed in subsection (2) do not apply to personal data to which this Chapter applies by virtue of section 21(2) (manual unstructured personal data held by FOI public authorities).

(2)Those provisions are—

(a)in Chapter II of the applied GDPR (principles)—

(i)Article 5(1)(a) to (c), (e) and (f) (principles relating to processing, other than the accuracy principle),

(ii)Article 6 (lawfulness),

(iii)Article 7 (conditions for consent),

(iv)Article 8(1) and (2) (child's consent),

(v)Article 9 (processing of special categories of personal data),

(vi)Article 10 (data relating to criminal convictions etc), and

(vii)Article 11(2) (processing not requiring identification);

(b)in Chapter III of the applied GDPR (rights of the data subject)—

(i)Article 13(1) to (3) (personal data collected from data subject: information to be provided),

(ii)Article 14(1) to (4) (personal data collected other than from data subject: information to be provided),

(iii)Article 20 (right to data portability), and

(iv)Article 21(1) (objections to processing);

(c)in Chapter V of the applied GDPR, Articles 44 to 49 (transfers of personal data to third countries or international organisations);

(d)sections 170 and 171 of this Act;

(see also paragraph 1(2) of Schedule 18).

(3)In addition, the provisions of the applied GDPR listed in subsection (4) do not apply to personal data to which this Chapter applies by virtue of section 21(2) where the personal data relates to appointments, removals, pay, discipline, superannuation or other personnel matters in relation to—

(a)service in any of the armed forces of the Crown;

(b)service in any office or employment under the Crown or under any public authority;

(c)service in any office or employment, or under any contract for services, in respect of which power to take action, or to determine or approve the action taken, in such matters is vested in—

(i)Her Majesty,

(ii)a Minister of the Crown,

(iii)the National Assembly for Wales,

(iv)the Welsh Ministers,

(v)a Northern Ireland Minister (within the meaning of the Freedom of Information Act 2000), or

(vi)an FOI public authority.

(4)Those provisions are—

(a)the remaining provisions of Chapters II and III (principles and rights of the data subject);

(b)Chapter IV (controller and processor);

(c)Chapter IX (specific processing situations).

(5)A controller is not obliged to comply with Article 15(1) to (3) of the applied GDPR (right of access by the data subject) in relation to personal data to which this Chapter applies by virtue of section 21(2) if—

(a)the request under that Article does not contain a description of the personal data, or

(b)the controller estimates that the cost of complying with the request so far as relating to the personal data would exceed the appropriate maximum.

(6)Subsection (5)(b) does not remove the controller's obligation to confirm whether or not personal data concerning the data subject is being processed unless the estimated cost of complying with that obligation alone in relation to the personal data would exceed the appropriate maximum.

(7)An estimate for the purposes of this section must be made in accordance with regulations under section 12(5) of the Freedom of Information Act 2000.

(8)In subsections (5) and (6), “the appropriate maximum” means the maximum amount specified by the Secretary of State by regulations.

(9)Regulations under subsection (8) are subject to the negative resolution procedure.

25 Manual unstructured data used in longstanding historical research

(1)The provisions of the applied GDPR listed in subsection (2) do not apply to personal data to which this Chapter applies by virtue of section 21(2) (manual unstructured personal data held by FOI public authorities) at any time when—

(a)the personal data—

(i)is subject to processing which was already underway immediately before 24 October 1998, and

(ii)is processed only for the purposes of historical research, and

(b)the processing is not carried out—

(i)for the purposes of measures or decisions with respect to a particular data subject, or

(ii)in a way that causes, or is likely to cause, substantial damage or substantial distress to a data subject.

(2)Those provisions are—

(a)in Chapter II of the applied GDPR (principles), Article 5(1)(d) (the accuracy principle), and

(b)in Chapter III of the applied GDPR (rights of the data subject)—

(i)Article 16 (right to rectification), and

(ii)Article 17(1) and (2) (right to erasure).

(3)The exemptions in this section apply in addition to the exemptions in section 24.

26 National security and defence exemption

(1)A provision of the applied GDPR or this Act mentioned in subsection (2) does not apply to personal data to which this Chapter applies if exemption from the provision is required for—

(a)the purpose of safeguarding national security, or

(b)defence purposes.

(2)The provisions are—

(a)Chapter II of the applied GDPR (principles) except for—

(i)Article 5(1)(a) (lawful, fair and transparent processing), so far as it requires processing of personal data to be lawful;

(ii)Article 6 (lawfulness of processing);

(iii)Article 9 (processing of special categories of personal data);

(b)Chapter III of the applied GDPR (rights of data subjects);

(c)in Chapter IV of the applied GDPR—

(i)Article 33 (notification of personal data breach to the Commissioner);

(ii)Article 34 (communication of personal data breach to the data subject);

(d)Chapter V of the applied GDPR (transfers of personal data to third countries or international organisations);

(e)in Chapter VI of the applied GDPR—

(i)Article 57(1)(a) and (h) (Commissioner's duties to monitor and enforce the applied GDPR and to conduct investigations);

(ii)Article 58 (investigative, corrective, authorisation and advisory powers of Commissioner);

(f)Chapter VIII of the applied GDPR (remedies, liabilities and penalties) except for—

(i)Article 83 (general conditions for imposing administrative fines);

(ii)Article 84 (penalties);

(g)in Part 5 of this Act—

(i)in section 115 (general functions of the Commissioner), subsections (3) and (8);

(ii)in section 115, subsection (9), so far as it relates to Article 58(2)(i) of the applied GDPR;

(iii)section 119 (inspection in accordance with international obligations);

(h)in Part 6 of this Act—

(i)sections 142 to 154 and Schedule 15 (Commissioner's notices and powers of entry and inspection);

(ii)sections 170 to 173 (offences relating to personal data);

(i)in Part 7 of this Act, section 187 (representation of data subjects).

27 National security: certificate

(1)Subject to subsection (3), a certificate signed by a Minister of the Crown certifying that exemption from all or any of the provisions listed in section 26(2) is, or at any time was, required in relation to any personal data for the purpose of safeguarding national security is conclusive evidence of that fact.

(2)A certificate under subsection (1)—

(a)may identify the personal data to which it applies by means of a general description, and

(b)may be expressed to have prospective effect.

(3)Any person directly affected by a certificate under subsection (1) may appeal to the Tribunal against the certificate.

(4)If, on an appeal under subsection (3), the Tribunal finds that, applying the principles applied by a court on an application for judicial review, the Minister did not have reasonable grounds for issuing a certificate, the Tribunal may—

(a)allow the appeal, and

(b)quash the certificate.

(5)Where, in any proceedings under or by virtue of the applied GDPR or this Act, it is claimed by a controller that a certificate under subsection (1) which identifies the personal data to which it applies by means of a general description applies to any personal data, another party to the proceedings may appeal to the Tribunal on the ground that the certificate does not apply to the personal data in question.

(6)But, subject to any determination under subsection (7), the certificate is to be conclusively presumed so to apply.

(7)On an appeal under subsection (5), the Tribunal may determine that the certificate does not so apply.

(8)A document purporting to be a certificate under subsection (1) is to be—

(a)received in evidence, and

(b)deemed to be such a certificate unless the contrary is proved.

(9)A document which purports to be certified by or on behalf of a Minister of the Crown as a true copy of a certificate issued by that Minister under subsection (1) is—

(a)in any legal proceedings, evidence of that certificate;

(b)in any legal proceedings in Scotland, sufficient evidence of that certificate.

(10)The power conferred by subsection (1) on a Minister of the Crown is exercisable only by—

(a)a Minister who is a member of the Cabinet, or

(b)the Attorney General or the Advocate General for Scotland.

28 National security and defence: modifications to Articles 9 and 32 of the applied GDPR

(1)Article 9(1) of the applied GDPR (prohibition on processing of special categories of personal data) does not prohibit the processing of personal data to which this Chapter applies to the extent that the processing is carried out—

(a)for the purpose of safeguarding national security or for defence purposes, and

(b)with appropriate safeguards for the rights and freedoms of data subjects.

(2)Article 32 of the applied GDPR (security of processing) does not apply to a controller or processor to the extent that the controller or the processor (as the case may be) is processing personal data to which this Chapter applies for—

(a)the purpose of safeguarding national security, or

(b)defence purposes.

(3)Where Article 32 of the applied GDPR does not apply, the controller or the processor must implement security measures appropriate to the risks arising from the processing of the personal data.

(4)For the purposes of subsection (3), where the processing of personal data is carried out wholly or partly by automated means, the controller or the processor must, following an evaluation of the risks, implement measures designed to—

(a)prevent unauthorised processing or unauthorised interference with the systems used in connection with the processing,

(b)ensure that it is possible to establish the precise details of any processing that takes place,

(c)ensure that any systems used in connection with the processing function properly and may, in the case of interruption, be restored, and

(d)ensure that stored personal data cannot be corrupted if a system used in connection with the processing malfunctions.

PART 3 Law enforcement processing

CHAPTER 1 Scope and definitions

Scope

29 Processing to which this Part applies

(1)This Part applies to—

(a)the processing by a competent authority of personal data wholly or partly by automated means, and

(b)the processing by a competent authority otherwise than by automated means of personal data which forms part of a filing system or is intended to form part of a filing system.

(2)Any reference in this Part to the processing of personal data is to processing to which this Part applies.

(3)For the meaning of “competent authority”, see section 30.

Definitions

30 Meaning of “competent authority”

(1)In this Part, “competent authority” means—

(a)a person specified or described in Schedule 7, and

(b)any other person if and to the extent that the person has statutory functions for any of the law enforcement purposes.

(2)But an intelligence service is not a competent authority within the meaning of this Part.

(3)The Secretary of State may by regulations amend Schedule 7—

(a)so as to add or remove a person or description of person;

(b)so as to reflect any change in the name of a person specified in the Schedule.

(4)Regulations under subsection (3) which make provision of the kind described in subsection (3)(a) may also make consequential amendments of section 73(4)(b).

(5)Regulations under subsection (3) which make provision of the kind described in subsection (3)(a), or which make provision of that kind and of the kind described in subsection (3)(b), are subject to the affirmative resolution procedure.

(6)Regulations under subsection (3) which make provision only of the kind described in subsection (3)(b) are subject to the negative resolution procedure.

(7)In this section—

“intelligence service” means—

(a)the Security Service;

(b)the Secret Intelligence Service;

(c)the Government Communications Headquarters;

“statutory function” means a function under or by virtue of an enactment.

31 “The law enforcement purposes”

For the purposes of this Part, “the law enforcement purposes” are the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.

32 Meaning of “controller” and “processor”

(1)In this Part, “controller” means the competent authority which, alone or jointly with others—

(a)determines the purposes and means of the processing of personal data, or

(b)is the controller by virtue of subsection (2).

(2)Where personal data is processed only—

(a)for purposes for which it is required by an enactment to be processed, and

(b)by means by which it is required by an enactment to be processed,

the competent authority on which the obligation to process the data is imposed by the enactment (or, if different, one of the enactments) is the controller.

(3)In this Part, “processor” means any person who processes personal data on behalf of the controller (other than a person who is an employee of the controller).

33 Other definitions

(1)This section defines certain other expressions used in this Part.

(2)“Employee”, in relation to any person, includes an individual who holds a position (whether paid or unpaid) under the direction and control of that person.

(3)“Personal data breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed.

(4)“Profiling” means any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to an individual, in particular to analyse or predict aspects concerning that individual's performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements.

(5)“Recipient”, in relation to any personal data, means any person to whom the data is disclosed, whether a third party or not, but it does not include a public authority to whom disclosure is or may be made in the framework of a particular inquiry in accordance with the law.

(6)“Restriction of processing” means the marking of stored personal data with the aim of limiting its processing for the future.

(7)“Third country” means a country or territory other than a member State.

(8)Sections 3 and 205 include definitions of other expressions used in this Part.

CHAPTER 2 Principles

34 Overview and general duty of controller

(1)This Chapter sets out the six data protection principles as follows—

(a)section 35(1) sets out the first data protection principle (requirement that processing be lawful and fair);

(b)section 36(1) sets out the second data protection principle (requirement that purposes of processing be specified, explicit and legitimate);

(c)section 37 sets out the third data protection principle (requirement that personal data be adequate, relevant and not excessive);

(d)section 38(1) sets out the fourth data protection principle (requirement that personal data be accurate and kept up to date);

(e)section 39(1) sets out the fifth data protection principle (requirement that personal data be kept for no longer than is necessary);

(f)section 40 sets out the sixth data protection principle (requirement that personal data be processed in a secure manner).

(2)In addition—

(a)each of sections 35, 36, 38 and 39 makes provision to supplement the principle to which it relates, and

(b)sections 41 and 42 make provision about the safeguards that apply in relation to certain types of processing.

(3)The controller in relation to personal data is responsible for, and must be able to demonstrate, compliance with this Chapter.

35 The first data protection principle

(1)The first data protection principle is that the processing of personal data for any of the law enforcement purposes must be lawful and fair.

(2)The processing of personal data for any of the law enforcement purposes is lawful only if and to the extent that it is based on law and either—

(a)the data subject has given consent to the processing for that purpose, or

(b)the processing is necessary for the performance of a task carried out for that purpose by a competent authority.

(3)In addition, where the processing for any of the law enforcement purposes is sensitive processing, the processing is permitted only in the two cases set out in subsections (4) and (5).

(4)The first case is where—

(a)the data subject has given consent to the processing for the law enforcement purpose as mentioned in subsection (2)(a), and

(b)at the time when the processing is carried out, the controller has an appropriate policy document in place (see section 42).

(5)The second case is where—

(a)the processing is strictly necessary for the law enforcement purpose,

(b)the processing meets at least one of the conditions in Schedule 8, and

(c)at the time when the processing is carried out, the controller has an appropriate policy document in place (see section 42).

(6)The Secretary of State may by regulations amend Schedule 8—

(a)by adding conditions;

(b)by omitting conditions added by regulations under paragraph (a).

(7)Regulations under subsection (6) are subject to the affirmative resolution procedure.

(8)In this section, “sensitive processing” means—

(a)the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership;

(b)the processing of genetic data, or of biometric data, for the purpose of uniquely identifying an individual;

(c)the processing of data concerning health;

(d)the processing of data concerning an individual's sex life or sexual orientation.

36 The second data protection principle

(1)The second data protection principle is that—

(a)the law enforcement purpose for which personal data is collected on any occasion must be specified, explicit and legitimate, and

(b)personal data so collected must not be processed in a manner that is incompatible with the purpose for which it was collected.

(2)Paragraph (b) of the second data protection principle is subject to subsections (3) and (4).

(3)Personal data collected for a law enforcement purpose may be processed for any other law enforcement purpose (whether by the controller that collected the data or by another controller) provided that—

(a)the controller is authorised by law to process the data for the other purpose, and

(b)the processing is necessary and proportionate to that other purpose.

(4)Personal data collected for any of the law enforcement purposes may not be processed for a purpose that is not a law enforcement purpose unless the processing is authorised by law.

37 The third data protection principle

The third data protection principle is that personal data processed for any of the law enforcement purposes must be adequate, relevant and not excessive in relation to the purpose for which it is processed.

38 The fourth data protection principle

(1)The fourth data protection principle is that—

(a)personal data processed for any of the law enforcement purposes must be accurate and, where necessary, kept up to date, and

(b)every reasonable step must be taken to ensure that personal data that is inaccurate, having regard to the law enforcement purpose for which it is processed, is erased or rectified without delay.

(2)In processing personal data for any of the law enforcement purposes, personal data based on facts must, so far as possible, be distinguished from personal data based on personal assessments.

(3)In processing personal data for any of the law enforcement purposes, a clear distinction must, where relevant and as far as possible, be made between personal data relating to different categories of data subject, such as—

(a)persons suspected of having committed or being about to commit a criminal offence;

(b)persons convicted of a criminal offence;

(c)persons who are or may be victims of a criminal offence;

(d)witnesses or other persons with information about offences.

(4)All reasonable steps must be taken to ensure that personal data which is inaccurate, incomplete or no longer up to date is not transmitted or made available for any of the law enforcement purposes.

(5)For that purpose—

(a)the quality of personal data must be verified before it is transmitted or made available,

(b)in all transmissions of personal data, the necessary information enabling the recipient to assess the degree of accuracy, completeness and reliability of the data and the extent to which it is up to date must be included, and

(c)if, after personal data has been transmitted, it emerges that the data was incorrect or that the transmission was unlawful, the recipient must be notified without delay.

39 The fifth data protection principle

(1)The fifth data protection principle is that personal data processed for any of the law enforcement purposes must be kept for no longer than is necessary for the purpose for which it is processed.

(2)Appropriate time limits must be established for the periodic review of the need for the continued storage of personal data for any of the law enforcement purposes.

40 The sixth data protection principle

The sixth data protection principle is that personal data processed for any of the law enforcement purposes must be so processed in a manner that ensures appropriate security of the personal data, using appropriate technical or organisational measures (and, in this principle, “appropriate security” includes protection against unauthorised or unlawful processing and against accidental loss, destruction or damage).

41 Safeguards: archiving

(1)This section applies in relation to the processing of personal data for a law enforcement purpose where the processing is necessary—

(a)for archiving purposes in the public interest,

(b)for scientific or historical research purposes, or

(c)for statistical purposes.

(2)The processing is not permitted if—

(a)it is carried out for the purposes of, or in connection with, measures or decisions with respect to a particular data subject, or

(b)it is likely to cause substantial damage or substantial distress to a data subject.

42 Safeguards: sensitive processing

(1)This section applies for the purposes of section 35(4) and (5) (which require a controller to have an appropriate policy document in place when carrying out sensitive processing in reliance on the consent of the data subject or, as the case may be, in reliance on a condition specified in Schedule 8).

(2)The controller has an appropriate policy document in place in relation to the sensitive processing if the controller has produced a document which—

(a)explains the controller's procedures for securing compliance with the data protection principles (see section 34(1)) in connection with sensitive processing in reliance on the consent of the data subject or (as the case may be) in reliance on the condition in question, and

(b)explains the controller's policies as regards the retention and erasure of personal data processed in reliance on the consent of the data subject or (as the case may be) in reliance on the condition in question, giving an indication of how long such personal data is likely to be retained.

(3)Where personal data is processed on the basis that an appropriate policy document is in place, the controller must during the relevant period—

(a)retain the appropriate policy document,

(b)review and (if appropriate) update it from time to time, and

(c)make it available to the Commissioner, on request, without charge.

(4)The record maintained by the controller under section 61(1) and, where the sensitive processing is carried out by a processor on behalf of the controller, the record maintained by the processor under section 61(3) must include the following information—

(a)whether the sensitive processing is carried out in reliance on the consent of the data subject or, if not, which condition in Schedule 8 is relied on,

(b)how the processing satisfies section 35 (lawfulness of processing), and

(c)whether the personal data is retained and erased in accordance with the policies described in subsection (2)(b) and, if it is not, the reasons for not following those policies.

(5)In this section, “relevant period”, in relation to sensitive processing in reliance on the consent of the data subject or in reliance on a condition specified in Schedule 8, means a period which—

(a)begins when the controller starts to carry out the sensitive processing in reliance on the data subject's consent or (as the case may be) in reliance on that condition, and

(b)ends at the end of the period of 6 months beginning when the controller ceases to carry out the processing.

CHAPTER 3 Rights of the data subject

Overview and scope

43 Overview and scope

(1)This Chapter—

(a)imposes general duties on the controller to make information available (see section 44);

(b)confers a right of access by the data subject (see section 45);

(c)confers rights on the data subject with respect to the rectification of personal data and the erasure of personal data or the restriction of its processing (see sections 46 to 48);

(d)regulates automated decision-making (see sections 49 and 50);

(e)makes supplementary provision (see sections 51 to 54).

(2)This Chapter applies only in relation to the processing of personal data for a law enforcement purpose.

(3)But sections 44 to 48 do not apply in relation to the processing of relevant personal data in the course of a criminal investigation or criminal proceedings, including proceedings for the purpose of executing a criminal penalty.

(4)In subsection (3), “relevant personal data” means personal data contained in a judicial decision or in other documents relating to the investigation or proceedings which are created by or on behalf of a court or other judicial authority.

(5)In this Chapter, “the controller”, in relation to a data subject, means the controller in relation to personal data relating to the data subject.

Information: controller's general duties

44 Information: controller's general duties

(1)The controller must make available to data subjects the following information (whether by making the information generally available to the public or in any other way)—

(a)the identity and the contact details of the controller;

(b)where applicable, the contact details of the data protection officer (see sections 69 to 71);

(c)the purposes for which the controller processes personal data;

(d)the existence of the rights of data subjects to request from the controller—

(i)access to personal data (see section 45),

(ii)rectification of personal data (see section 46), and

(iii)erasure of personal data or the restriction of its processing (see section 47);

(e)the existence of the right to lodge a complaint with the Commissioner and the contact details of the Commissioner.

(2)The controller must also, in specific cases for the purpose of enabling the exercise of a data subject's rights under this Part, give the data subject the following—

(a)information about the legal basis for the processing;

(b)information about the period for which the personal data will be stored or, where that is not possible, about the criteria used to determine that period;

(c)where applicable, information about the categories of recipients of the personal data (including recipients in third countries or international organisations);

(d)such further information as is necessary to enable the exercise of the data subject's rights under this Part.

(3)An example of where further information may be necessary as mentioned in subsection (2)(d) is where the personal data being processed was collected without the knowledge of the data subject.

(4)The controller may restrict, wholly or partly, the provision of information to the data subject under subsection (2) to the extent that and for so long as the restriction is, having regard to the fundamental rights and legitimate interests of the data subject, a necessary and proportionate measure to—

(a)avoid obstructing an official or legal inquiry, investigation or procedure;

(b)avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties;

(c)protect public security;

(d)protect national security;

(e)protect the rights and freedoms of others.

(5)Where the provision of information to a data subject under subsection (2) is restricted, wholly or partly, the controller must inform the data subject in writing without undue delay—

(a)that the provision of information has been restricted,

(b)of the reasons for the restriction,

(c)of the data subject's right to make a request to the Commissioner under section 51,

(d)of the data subject's right to lodge a complaint with the Commissioner, and

(e)of the data subject's right to apply to a court under section 167.

(6)Subsection (5)(a) and (b) do not apply to the extent that complying with them would undermine the purpose of the restriction.

(7)The controller must—

(a)record the reasons for a decision to restrict (whether wholly or partly) the provision of information to a data subject under subsection (2), and

(b)if requested to do so by the Commissioner, make the record available to the Commissioner.

Data subject's right of access

45 Right of access by the data subject

(1)A data subject is entitled to obtain from the controller—

(a)confirmation as to whether or not personal data concerning him or her is being processed, and

(b)where that is the case, access to the personal data and the information set out in subsection (2).

(2)That information is—

(a)the purposes of and legal basis for the processing;

(b)the categories of personal data concerned;

(c)the recipients or categories of recipients to whom the personal data has been disclosed (including recipients or categories of recipients in third countries or international organisations);

(d)the period for which it is envisaged that the personal data will be stored or, where that is not possible, the criteria used to determine that period;

(e)the existence of the data subject's rights to request from the controller—

(i)rectification of personal data (see section 46), and

(ii)erasure of personal data or the restriction of its processing (see section 47);

(f)the existence of the data subject's right to lodge a complaint with the Commissioner and the contact details of the Commissioner;

(g)communication of the personal data undergoing processing and of any available information as to its origin.

(3)Where a data subject makes a request under subsection (1), the information to which the data subject is entitled must be provided in writing —

(a)without undue delay, and

(b)in any event, before the end of the applicable time period (as to which see section 54).

(4)The controller may restrict, wholly or partly, the rights conferred by subsection (1) to the extent that and for so long as the restriction is, having regard to the fundamental rights and legitimate interests of the data subject, a necessary and proportionate measure to—

(a)avoid obstructing an official or legal inquiry, investigation or procedure;

(b)avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties;

(c)protect public security;

(d)protect national security;

(e)protect the rights and freedoms of others.

(5)Where the rights of a data subject under subsection (1) are restricted, wholly or partly, the controller must inform the data subject in writing without undue delay—

(a)that the rights of the data subject have been restricted,

(b)of the reasons for the restriction,

(c)of the data subject's right to make a request to the Commissioner under section 51,

(d)of the data subject's right to lodge a complaint with the Commissioner, and

(e)of the data subject's right to apply to a court under section 167.

(6)Subsection (5)(a) and (b) do not apply to the extent that the provision of the information would undermine the purpose of the restriction.

(7)The controller must—

(a)record the reasons for a decision to restrict (whether wholly or partly) the rights of a data subject under subsection (1), and

(b)if requested to do so by the Commissioner, make the record available to the Commissioner.

Data subject's rights to rectification or erasure etc

46 Right to rectification

(1)The controller must, if so requested by a data subject, rectify without undue delay inaccurate personal data relating to the data subject.

(2)Where personal data is inaccurate because it is incomplete, the controller must, if so requested by a data subject, complete it.

(3)The duty under subsection (2) may, in appropriate cases, be fulfilled by the provision of a supplementary statement.

(4)Where the controller would be required to rectify personal data under this section but the personal data must be maintained for the purposes of evidence, the controller must (instead of rectifying the personal data) restrict its processing.

47 Right to erasure or restriction of processing

(1)The controller must erase personal data without undue delay where—

(a)the processing of the personal data would infringe section 35, 36(1) to (3), 37, 38(1), 39(1), 40, 41 or 42, or

(b)the controller has a legal obligation to erase the data.

(2)Where the controller would be required to erase personal data under subsection (1) but the personal data must be maintained for the purposes of evidence, the controller must (instead of erasing the personal data) restrict its processing.

(3)Where a data subject contests the accuracy of personal data (whether in making a request under this section or section 46 or in any other way), but it is not possible to ascertain whether it is accurate or not, the controller must restrict its processing.

(4)A data subject may request the controller to erase personal data or to restrict its processing (but the duties of the controller under this section apply whether or not such a request is made).

48 Rights under section 46 or 47: supplementary

(1)Where a data subject requests the rectification or erasure of personal data or the restriction of its processing, the controller must inform the data subject in writing—

(a)whether the request has been granted, and

(b)if it has been refused—

(i)of the reasons for the refusal,

(ii)of the data subject's right to make a request to the Commissioner under section 51,

(iii)of the data subject's right to lodge a complaint with the Commissioner, and

(iv)of the data subject's right to apply to a court under section 167.

(2)The controller must comply with the duty under subsection (1)—

(a)without undue delay, and

(b)in any event, before the end of the applicable time period (see section 54).

(3)The controller may restrict, wholly or partly, the provision of information to the data subject under subsection (1)(b)(i) to the extent that and for so long as the restriction is, having regard to the fundamental rights and legitimate interests of the data subject, a necessary and proportionate measure to—

(a)avoid obstructing an official or legal inquiry, investigation or procedure;

(b)avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties;

(c)protect public security;

(d)protect national security;

(e)protect the rights and freedoms of others.

(4)Where the rights of a data subject under subsection (1) are restricted, wholly or partly, the controller must inform the data subject in writing without undue delay—

(a)that the rights of the data subject have been restricted,

(b)of the reasons for the restriction,

(c)of the data subject's right to lodge a complaint with the Commissioner, and

(d)of the data subject's right to apply to a court under section 167.

(5)Subsection (4)(a) and (b) do not apply to the extent that the provision of the information would undermine the purpose of the restriction.

(6)The controller must—

(a)record the reasons for a decision to restrict (whether wholly or partly) the provision of information to a data subject under subsection (1)(b)(i), and

(b)if requested to do so by the Commissioner, make the record available to the Commissioner.

(7)Where the controller rectifies personal data, it must notify the competent authority (if any) from which the inaccurate personal data originated.

(8)In subsection (7), the reference to a competent authority includes (in addition to a competent authority within the meaning of this Part) any person that is a competent authority for the purposes of the Law Enforcement Directive in a member State other than the United Kingdom.

(9)Where the controller rectifies, erases or restricts the processing of personal data which has been disclosed by the controller—

(a)the controller must notify the recipients, and

(b)the recipients must similarly rectify, erase or restrict the processing of the personal data (so far as they retain responsibility for it).

(10)Where processing is restricted in accordance with section 47(3), the controller must inform the data subject before lifting the restriction.

Automated individual decision-making

49 Right not to be subject to automated decision-making

(1)A controller may not take a significant decision based solely on automated processing unless that decision is required or authorised by law.

(2)A decision is a “significant decision” for the purpose of this section if, in relation to a data subject, it—

(a)produces an adverse legal effect concerning the data subject, or

(b)significantly affects the data subject.

50 Automated decision-making authorised by law: safeguards

(1)A decision is a “qualifying significant decision” for the purposes of this section if—

(a)it is a significant decision in relation to a data subject, and

(b)it is required or authorised by law.

(2)Where a controller takes a qualifying significant decision in relation to a data subject based solely on automated processing—

(a)the controller must, as soon as reasonably practicable, notify the data subject in writing that a decision has been taken based solely on automated processing, and

(b)the data subject may, before the end of the period of 1 month beginning with receipt of the notification, request the controller to—

(i)reconsider the decision, or

(ii)take a new decision that is not based solely on automated processing.

(3)If a request is made to a controller under subsection (2), the controller must, before the end of the period of 1 month beginning with receipt of the request—

(a)consider the request, including any information provided by the data subject that is relevant to it,

(b)comply with the request, and

(c)by notice in writing inform the data subject of—

(i)the steps taken to comply with the request, and

(ii)the outcome of complying with the request.

(4)The Secretary of State may by regulations make such further provision as the Secretary of State considers appropriate to provide suitable measures to safeguard a data subject's rights, freedoms and legitimate interests in connection with the taking of qualifying significant decisions based solely on automated processing.

(5)Regulations under subsection (4)—

(a)may amend this section, and

(b)are subject to the affirmative resolution procedure.

(6)In this section “significant decision” has the meaning given by section 49(2).

Supplementary

51 Exercise of rights through the Commissioner

(1)This section applies where a controller—

(a)restricts under section 44(4) the information provided to the data subject under section 44(2) (duty of the controller to give the data subject additional information),

(b)restricts under section 45(4) the data subject's rights under section 45(1) (right of access), or

(c)refuses a request by the data subject for rectification under section 46 or for erasure or restriction of processing under section 47.

(2)The data subject may—

(a)where subsection (1)(a) or (b) applies, request the Commissioner to check that the restriction imposed by the controller was lawful;

(b)where subsection (1)(c) applies, request the Commissioner to check that the refusal of the data subject's request was lawful.

(3)The Commissioner must take such steps as appear to the Commissioner to be appropriate to respond to a request under subsection (2) (which may include the exercise of any of the powers conferred by sections 142 and 146).

(4)After taking those steps, the Commissioner must inform the data subject—

(a)where subsection (1)(a) or (b) applies, whether the Commissioner is satisfied that the restriction imposed by the controller was lawful;

(b)where subsection (1)(c) applies, whether the Commissioner is satisfied that the controller's refusal of the data subject's request was lawful.

(5)The Commissioner must also inform the data subject of the data subject's right to apply to a court under section 167.

(6)Where the Commissioner is not satisfied as mentioned in subsection (4)(a) or (b), the Commissioner may also inform the data subject of any further steps that the Commissioner is considering taking under Part 6 .

52 Form of provision of information etc

(1)The controller must take reasonable steps to ensure that any information that is required by this Chapter to be provided to the data subject is provided in a concise, intelligible and easily accessible form, using clear and plain language.

(2)Subject to subsection (3), the information may be provided in any form, including electronic form.

(3)Where information is provided in response to a request by the data subject under section 45, 46, 47 or 50, the controller must provide the information in the same form as the request where it is practicable to do so.

(4)Where the controller has reasonable doubts about the identity of an individual making a request under section 45, 46 or 47, the controller may—

(a)request the provision of additional information to enable the controller to confirm the identity, and

(b)delay dealing with the request until the identity is confirmed.

(5)Subject to section 53, any information that is required by this Chapter to be provided to the data subject must be provided free of charge.

(6)The controller must facilitate the exercise of the rights of the data subject under sections 45 to 50.

53 Manifestly unfounded or excessive requests by the data subject

(1)Where a request from a data subject under section 45, 46, 47 or 50 is manifestly unfounded or excessive, the controller may—

(a)charge a reasonable fee for dealing with the request, or

(b)refuse to act on the request.

(2)An example of a request that may be excessive is one that merely repeats the substance of previous requests.

(3)In any proceedings where there is an issue as to whether a request under section 45, 46, 47 or 50 is manifestly unfounded or excessive, it is for the controller to show that it is.

(4)The Secretary of State may by regulations specify limits on the fees that a controller may charge in accordance with subsection (1)(a).

(5)Regulations under subsection (4) are subject to the negative resolution procedure.

54 Meaning of “applicable time period”

(1)This section defines “the applicable time period” for the purposes of sections 45(3)(b) and 48(2)(b).

(2)“The applicable time period” means the period of 1 month, or such longer period as may be specified in regulations, beginning with the relevant time.

(3)“The relevant time” means the latest of the following—

(a)when the controller receives the request in question;

(b)when the controller receives the information (if any) requested in connection with a request under section 52(4);

(c)when the fee (if any) charged in connection with the request under section 53 is paid.

(4)The power to make regulations under subsection (2) is exercisable by the Secretary of State.

(5)Regulations under subsection (2) may not specify a period which is longer than 3 months.

(6)Regulations under subsection (2) are subject to the negative resolution procedure.

CHAPTER 4 Controller and processor

Overview and scope

55 Overview and scope

(1)This Chapter—

(a)sets out the general obligations of controllers and processors (see sections 56 to 65);

(b)sets out specific obligations of controllers and processors with respect to security (see section 66);

(c)sets out specific obligations of controllers and processors with respect to personal data breaches (see sections 67 and 68);

(d)makes provision for the designation, position and tasks of data protection officers (see sections 69 to 71).

(2)This Chapter applies only in relation to the processing of personal data for a law enforcement purpose.

(3)Where a controller is required by any provision of this Chapter to implement appropriate technical and organisational measures, the controller must (in deciding what measures are appropriate) take into account—

(a)the latest developments in technology,

(b)the cost of implementation,

(c)the nature, scope, context and purposes of processing, and

(d)the risks for the rights and freedoms of individuals arising from the processing.

General obligations

56 General obligations of the controller

(1)Each controller must implement appropriate technical and organisational measures to ensure, and to be able to demonstrate, that the processing of personal data complies with the requirements of this Part.

(2)Where proportionate in relation to the processing, the measures implemented to comply with the duty under subsection (1) must include appropriate data protection policies.

(3)The technical and organisational measures implemented under subsection (1) must be reviewed and updated where necessary.

57 Data protection by design and default

(1)Each controller must implement appropriate technical and organisational measures which are designed—

(a)to implement the data protection principles in an effective manner, and

(b)to integrate into the processing itself the safeguards necessary for that purpose.

(2)The duty under subsection (1) applies both at the time of the determination of the means of processing the data and at the time of the processing itself.

(3)Each controller must implement appropriate technical and organisational measures for ensuring that, by default, only personal data which is necessary for each specific purpose of the processing is processed.

(4)The duty under subsection (3) applies to—

(a)the amount of personal data collected,

(b)the extent of its processing,

(c)the period of its storage, and

(d)its accessibility.

(5)In particular, the measures implemented to comply with the duty under subsection (3) must ensure that, by default, personal data is not made accessible to an indefinite number of people without an individual's intervention.

58 Joint controllers

(1)Where two or more competent authorities jointly determine the purposes and means of processing personal data, they are joint controllers for the purposes of this Part.

(2)Joint controllers must, in a transparent manner, determine their respective responsibilities for compliance with this Part by means of an arrangement between them, except to the extent that those responsibilities are determined under or by virtue of an enactment.

(3)The arrangement must designate the controller which is to be the contact point for data subjects.

59 Processors

(1)This section applies to the use by a controller of a processor to carry out processing of personal data on behalf of the controller.

(2)The controller may use only a processor who provides guarantees to implement appropriate technical and organisational measures that are sufficient to secure that the processing will—

(a)meet the requirements of this Part, and

(b)ensure the protection of the rights of the data subject.

(3)The processor used by the controller may not engage another processor (“a sub-processor”) without the prior written authorisation of the controller, which may be specific or general.

(4)Where the controller gives a general written authorisation to a processor, the processor must inform the controller if the processor proposes to add to the number of sub-processors engaged by it or to replace any of them (so that the controller has the opportunity to object to the proposal).

(5)The processing by the processor must be governed by a contract in writing between the controller and the processor setting out the following—

(a)the subject-matter and duration of the processing;

(b)the nature and purpose of the processing;

(c)the type of personal data and categories of data subjects involved;

(d)the obligations and rights of the controller and processor.

(6)The contract must, in particular, provide that the processor must—

(a)act only on instructions from the controller,

(b)ensure that the persons authorised to process personal data are subject to an appropriate duty of confidentiality,

(c)assist the controller by any appropriate means to ensure compliance with the rights of the data subject under this Part,

(d)at the end of the provision of services by the processor to the controller—

(i)either delete or return to the controller (at the choice of the controller) the personal data to which the services relate, and

(ii)delete copies of the personal data unless subject to a legal obligation to store the copies,

(e)make available to the controller all information necessary to demonstrate compliance with this section, and

(f)comply with the requirements of this section for engaging sub-processors.

(7)The terms included in the contract in accordance with subsection (6)(a) must provide that the processor may transfer personal data to a third country or international organisation only if instructed by the controller to make the particular transfer.

(8)If a processor determines, in breach of this Part, the purposes and means of processing, the processor is to be treated for the purposes of this Part as a controller in respect of that processing.

60 Processing under the authority of the controller or processor

A processor, and any person acting under the authority of a controller or processor, who has access to personal data may not process the data except—

(a)on instructions from the controller, or

(b)to comply with a legal obligation.

61 Records of processing activities

(1)Each controller must maintain a record of all categories of processing activities for which the controller is responsible.

(2)The controller's record must contain the following information—

(a)the name and contact details of the controller;

(b)where applicable, the name and contact details of the joint controller;

(c)where applicable, the name and contact details of the data protection officer;

(d)the purposes of the processing;

(e)the categories of recipients to whom personal data has been or will be disclosed (including recipients in third countries or international organisations);

(f)a description of the categories of—

(i)data subject, and

(ii)personal data;

(g)where applicable, details of the use of profiling;

(h)where applicable, the categories of transfers of personal data to a third country or an international organisation;

(i)an indication of the legal basis for the processing operations, including transfers, for which the personal data is intended;

(j)where possible, the envisaged time limits for erasure of the different categories of personal data;

(k)where possible, a general description of the technical and organisational security measures referred to in section 66.

(3)Each processor must maintain a record of all categories of processing activities carried out on behalf of a controller.

(4)The processor's record must contain the following information—

(a)the name and contact details of the processor and of any other processors engaged by the processor in accordance with section 59(3);

(b)the name and contact details of the controller on behalf of which the processor is acting;

(c)where applicable, the name and contact details of the data protection officer;

(d)the categories of processing carried out on behalf of the controller;

(e)where applicable, details of transfers of personal data to a third country or an international organisation where explicitly instructed to do so by the controller, including the identification of that third country or international organisation;

(f)where possible, a general description of the technical and organisational security measures referred to in section 66.

(5)The controller and the processor must make the records kept under this section available to the Commissioner on request.

62 Logging

(1)A controller (or, where personal data is processed on behalf of the controller by a processor, the processor) must keep logs for at least the following processing operations in automated processing systems—

(a)collection;

(b)alteration;

(c)consultation;

(d)disclosure (including transfers);

(e)combination;

(f)erasure.

(2)The logs of consultation must make it possible to establish—

(a)the justification for, and date and time of, the consultation, and

(b)so far as possible, the identity of the person who consulted the data.

(3)The logs of disclosure must make it possible to establish—

(a)the justification for, and date and time of, the disclosure, and

(b)so far as possible—

(i)the identity of the person who disclosed the data, and

(ii)the identity of the recipients of the data.

(4)The logs kept under subsection (1) may be used only for one or more of the following purposes—

(a)to verify the lawfulness of processing;

(b)to assist with self-monitoring by the controller or (as the case may be) the processor, including the conduct of internal disciplinary proceedings;

(c)to ensure the integrity and security of personal data;

(d)the purposes of criminal proceedings.

(5)The controller or (as the case may be) the processor must make the logs available to the Commissioner on request.

63 Co-operation with the Commissioner

Each controller and each processor must co-operate, on request, with the Commissioner in the performance of the Commissioner's tasks.

64 Data protection impact assessment

(1)Where a type of processing is likely to result in a high risk to the rights and freedoms of individuals, the controller must, prior to the processing, carry out a data protection impact assessment.

(2)A data protection impact assessment is an assessment of the impact of the envisaged processing operations on the protection of personal data.

(3)A data protection impact assessment must include the following—

(a)a general description of the envisaged processing operations;

(b)an assessment of the risks to the rights and freedoms of data subjects;

(c)the measures envisaged to address those risks;

(d)safeguards, security measures and mechanisms to ensure the protection of personal data and to demonstrate compliance with this Part, taking into account the rights and legitimate interests of the data subjects and other persons concerned.

(4)In deciding whether a type of processing is likely to result in a high risk to the rights and freedoms of individuals, the controller must take into account the nature, scope, context and purposes of the processing.

65 Prior consultation with the Commissioner

(1)This section applies where a controller intends to create a filing system and process personal data forming part of it.

(2)The controller must consult the Commissioner prior to the processing if a data protection impact assessment prepared under section 64 indicates that the processing of the data would result in a high risk to the rights and freedoms of individuals (in the absence of measures to mitigate the risk).

(3)Where the controller is required to consult the Commissioner under subsection (2), the controller must give the Commissioner—

(a)the data protection impact assessment prepared under section 64, and

(b)any other information requested by the Commissioner to enable the Commissioner to make an assessment of the compliance of the processing with the requirements of this Part.

(4)Where the Commissioner is of the opinion that the intended processing referred to in subsection (1) would infringe any provision of this Part, the Commissioner must provide written advice to the controller and, where the controller is using a processor, to the processor.

(5)The written advice must be provided before the end of the period of 6 weeks beginning with receipt of the request for consultation by the controller or the processor.

(6)The Commissioner may extend the period of 6 weeks by a further period of 1 month, taking into account the complexity of the intended processing.

(7)If the Commissioner extends the period of 6 weeks, the Commissioner must—

(a)inform the controller and, where applicable, the processor of any such extension before the end of the period of 1 month beginning with receipt of the request for consultation, and

(b)provide reasons for the delay.

Obligations relating to security

66 Security of processing

(1)Each controller and each processor must implement appropriate technical and organisational measures to ensure a level of security appropriate to the risks arising from the processing of personal data.

(2)In the case of automated processing, each controller and each processor must, following an evaluation of the risks, implement measures designed to—

(a)prevent unauthorised processing or unauthorised interference with the systems used in connection with it,

(b)ensure that it is possible to establish the precise details of any processing that takes place,

(c)ensure that any systems used in connection with the processing function properly and may, in the case of interruption, be restored, and

(d)ensure that stored personal data cannot be corrupted if a system used in connection with the processing malfunctions.

Obligations relating to personal data breaches

67 Notification of a personal data breach to the Commissioner

(1)If a controller becomes aware of a personal data breach in relation to personal data for which the controller is responsible, the controller must notify the breach to the Commissioner—

(a)without undue delay, and

(b)where feasible, not later than 72 hours after becoming aware of it.

(2)Subsection (1) does not apply if the personal data breach is unlikely to result in a risk to the rights and freedoms of individuals.

(3)Where the notification to the Commissioner is not made within 72 hours, the notification must be accompanied by reasons for the delay.

(4)Subject to subsection (5), the notification must include—

(a)a description of the nature of the personal data breach including, where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;

(b)the name and contact details of the data protection officer or other contact point from whom more information can be obtained;

(c)a description of the likely consequences of the personal data breach;

(d)a description of the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

(5)Where and to the extent that it is not possible to provide all the information mentioned in subsection (4) at the same time, the information may be provided in phases without undue further delay.

(6)The controller must record the following information in relation to a personal data breach—

(a)the facts relating to the breach,

(b)its effects, and

(c)the remedial action taken.

(7)The information mentioned in subsection (6) must be recorded in such a way as to enable the Commissioner to verify compliance with this section.

(8)Where a personal data breach involves personal data that has been transmitted by or to a person who is a controller under the law of another member State, the information mentioned in subsection (6) must be communicated to that person without undue delay.

(9)If a processor becomes aware of a personal data breach (in relation to personal data processed by the processor), the processor must notify the controller without undue delay.

68 Communication of a personal data breach to the data subject

(1)Where a personal data breach is likely to result in a high risk to the rights and freedoms of individuals, the controller must inform the data subject of the breach without undue delay.

(2)The information given to the data subject must include the following—

(a)a description of the nature of the breach;

(b)the name and contact details of the data protection officer or other contact point from whom more information can be obtained;

(c)a description of the likely consequences of the personal data breach;

(d)a description of the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

(3)The duty under subsection (1) does not apply where—

(a)the controller has implemented appropriate technological and organisational protection measures which were applied to the personal data affected by the breach,

(b)the controller has taken subsequent measures which ensure that the high risk to the rights and freedoms of data subjects referred to in subsection (1) is no longer likely to materialise, or

(c)it would involve a disproportionate effort.

(4)An example of a case which may fall within subsection (3)(a) is where measures that render personal data unintelligible to any person not authorised to access the data have been applied, such as encryption.

(5)In a case falling within subsection (3)(c) (but not within subsection (3)(a) or (b)), the information mentioned in subsection (2) must be made available to the data subject in another equally effective way, for example, by means of a public communication.

(6)Where the controller has not informed the data subject of the breach the Commissioner, on being notified under section 67 and after considering the likelihood of the breach resulting in a high risk, may—

(a)require the controller to notify the data subject of the breach, or

(b)decide that the controller is not required to do so because any of paragraphs (a) to (c) of subsection (3) applies.

(7)The controller may restrict, wholly or partly, the provision of information to the data subject under subsection (1) to the extent that and for so long as the restriction is, having regard to the fundamental rights and legitimate interests of the data subject, a necessary and proportionate measure to—

(a)avoid obstructing an official or legal inquiry, investigation or procedure;

(b)avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties;

(c)protect public security;

(d)protect national security;

(e)protect the rights and freedoms of others.

(8)Subsection (6) does not apply where the controller's decision not to inform the data subject of the breach was made in reliance on subsection (7).

(9)The duties in section 52(1) and (2) apply in relation to information that the controller is required to provide to the data subject under this section as they apply in relation to information that the controller is required to provide to the data subject under Chapter 3 .

Data protection officers

69 Designation of a data protection officer

(1)The controller must designate a data protection officer, unless the controller is a court, or other judicial authority, acting in its judicial capacity.

(2)When designating a data protection officer, the controller must have regard to the professional qualities of the proposed officer, in particular—

(a)the proposed officer's expert knowledge of data protection law and practice, and

(b)the ability of the proposed officer to perform the tasks mentioned in section 71.

(3)The same person may be designated as a data protection officer by several controllers, taking account of their organisational structure and size.

(4)The controller must publish the contact details of the data protection officer and communicate these to the Commissioner.

70 Position of data protection officer

(1)The controller must ensure that the data protection officer is involved, properly and in a timely manner, in all issues which relate to the protection of personal data.

(2)The controller must provide the data protection officer with the necessary resources and access to personal data and processing operations to enable the data protection officer to—

(a)perform the tasks mentioned in section 71, and

(b)maintain his or her expert knowledge of data protection law and practice.

(3)The controller—

(a)must ensure that the data protection officer does not receive any instructions regarding the performance of the tasks mentioned in section 71;

(b)must ensure that the data protection officer does not perform a task or fulfil a duty other than those mentioned in this Part where such task or duty would result in a conflict of interests;

(c)must not dismiss or penalise the data protection officer for performing the tasks mentioned in section 71.

(4)A data subject may contact the data protection officer with regard to all issues relating to—

(a)the processing of that data subject's personal data, or

(b)the exercise of that data subject's rights under this Part.

(5)The data protection officer, in the performance of this role, must report to the highest management level of the controller.

71 Tasks of data protection officer

(1)The controller must entrust the data protection officer with at least the following tasks—

(a)informing and advising the controller, any processor engaged by the controller, and any employee of the controller who carries out processing of personal data, of that person's obligations under this Part,

(b)providing advice on the carrying out of a data protection impact assessment under section 64 and monitoring compliance with that section,

(c)co-operating with the Commissioner,

(d)acting as the contact point for the Commissioner on issues relating to processing, including in relation to the consultation mentioned in section 65, and consulting with the Commissioner, where appropriate, in relation to any other matter,

(e)monitoring compliance with policies of the controller in relation to the protection of personal data, and

(f)monitoring compliance by the controller with this Part.

(2)In relation to the policies mentioned in subsection (1)(e), the data protection officer's tasks include—

(a)assigning responsibilities under those policies,

(b)raising awareness of those policies,

(c)training staff involved in processing operations, and

(d)conducting audits required under those policies.

(3)In performing the tasks set out in subsections (1) and (2), the data protection officer must have regard to the risks associated with processing operations, taking into account the nature, scope, context and purposes of processing.

CHAPTER 5 Transfers of personal data to third countries etc

Overview and interpretation

72 Overview and interpretation

(1)This Chapter deals with the transfer of personal data to third countries or international organisations, as follows—

(a)sections 73 to 76 set out the general conditions that apply;

(b)section 77 sets out the special conditions that apply where the intended recipient of personal data is not a relevant authority in a third country or an international organisation;

(c)section 78 makes special provision about subsequent transfers of personal data.

(2)In this Chapter, “relevant authority”, in relation to a third country, means any person based in a third country that has (in that country) functions comparable to those of a competent authority.

General principles for transfers

73 General principles for transfers of personal data

(1)A controller may not transfer personal data to a third country or to an international organisation unless—

(a)the three conditions set out in subsections (2) to (4) are met, and

(b)in a case where the personal data was originally transmitted or otherwise made available to the controller or another competent authority by a member State other than the United Kingdom, that member State, or any person based in that member State which is a competent authority for the purposes of the Law Enforcement Directive, has authorised the transfer in accordance with the law of the member State.

(2)Condition 1 is that the transfer is necessary for any of the law enforcement purposes.

(3)Condition 2 is that the transfer—

(a)is based on an adequacy decision (see section 74),

(b)if not based on an adequacy decision, is based on there being appropriate safeguards (see section 75), or

(c)if not based on an adequacy decision or on there being appropriate safeguards, is based on special circumstances (see section 76).

(4)Condition 3 is that—

(a)the intended recipient is a relevant authority in a third country or an international organisation that is a relevant international organisation, or

(b)in a case where the controller is a competent authority specified in any of paragraphs 5 to 17, 21, 24 to 28, 34 to 51, 54 and 56 of Schedule 7—

(i)the intended recipient is a person in a third country other than a relevant authority, and

(ii)the additional conditions in section 77 are met.

(5)Authorisation is not required as mentioned in subsection (1)(b) if—

(a)the transfer is necessary for the prevention of an immediate and serious threat either to the public security of a member State or a third country or to the essential interests of a member State, and

(b)the authorisation cannot be obtained in good time.

(6)Where a transfer is made without the authorisation mentioned in subsection (1)(b), the authority in the member State which would have been responsible for deciding whether to authorise the transfer must be informed without delay.

(7)In this section, “relevant international organisation” means an international organisation that carries out functions for any of the law enforcement purposes.

74 Transfers on the basis of an adequacy decision

A transfer of personal data to a third country or an international organisation is based on an adequacy decision where—

(a)the European Commission has decided, in accordance with Article 36 of the Law Enforcement Directive, that—

(i)the third country or a territory or one or more specified sectors within that third country, or

(ii)(as the case may be) the international organisation,

ensures an adequate level of protection of personal data, and

(b)that decision has not been repealed or suspended, or amended in a way that demonstrates that the Commission no longer considers there to be an adequate level of protection of personal data.

75 Transfers on the basis of appropriate safeguards

(1)A transfer of personal data to a third country or an international organisation is based on there being appropriate safeguards where—

(a)a legal instrument containing appropriate safeguards for the protection of personal data binds the intended recipient of the data, or

(b)the controller, having assessed all the circumstances surrounding transfers of that type of personal data to the third country or international organisation, concludes that appropriate safeguards exist to protect the data.

(2)The controller must inform the Commissioner about the categories of data transfers that take place in reliance on subsection (1)(b).

(3)Where a transfer of data takes place in reliance on subsection (1)—

(a)the transfer must be documented,

(b)the documentation must be provided to the Commissioner on request, and

(c)the documentation must include, in particular—

(i)the date and time of the transfer,

(ii)the name of and any other pertinent information about the recipient,

(iii)the justification for the transfer, and

(iv)a description of the personal data transferred.

76 Transfers on the basis of special circumstances

(1)A transfer of personal data to a third country or international organisation is based on special circumstances where the transfer is necessary—

(a)to protect the vital interests of the data subject or another person,

(b)to safeguard the legitimate interests of the data subject,

(c)for the prevention of an immediate and serious threat to the public security of a member State or a third country,

(d)in individual cases for any of the law enforcement purposes, or

(e)in individual cases for a legal purpose.

(2)But subsection (1)(d) and (e) do not apply if the controller determines that fundamental rights and freedoms of the data subject override the public interest in the transfer.

(3)Where a transfer of data takes place in reliance on subsection (1)—

(a)the transfer must be documented,

(b)the documentation must be provided to the Commissioner on request, and

(c)the documentation must include, in particular—

(i)the date and time of the transfer,

(ii)the name of and any other pertinent information about the recipient,

(iii)the justification for the transfer, and

(iv)a description of the personal data transferred.

(4)For the purposes of this section, a transfer is necessary for a legal purpose if—

(a)it is necessary for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings) relating to any of the law enforcement purposes,

(b)it is necessary for the purpose of obtaining legal advice in relation to any of the law enforcement purposes, or

(c)it is otherwise necessary for the purposes of establishing, exercising or defending legal rights in relation to any of the law enforcement purposes.

Transfers to particular recipients

77 Transfers of personal data to persons other than relevant authorities

(1)The additional conditions referred to in section 73(4)(b)(ii) are the following four conditions.

(2)Condition 1 is that the transfer is strictly necessary in a specific case for the performance of a task of the transferring controller as provided by law for any of the law enforcement purposes.

(3)Condition 2 is that the transferring controller has determined that there are no fundamental rights and freedoms of the data subject concerned that override the public interest necessitating the transfer.

(4)Condition 3 is that the transferring controller considers that the transfer of the personal data to a relevant authority in the third country would be ineffective or inappropriate (for example, where the transfer could not be made in sufficient time to enable its purpose to be fulfilled).

(5)Condition 4 is that the transferring controller informs the intended recipient of the specific purpose or purposes for which the personal data may, so far as necessary, be processed.

(6)Where personal data is transferred to a person in a third country other than a relevant authority, the transferring controller must inform a relevant authority in that third country without undue delay of the transfer, unless this would be ineffective or inappropriate.

(7)The transferring controller must—

(a)document any transfer to a recipient in a third country other than a relevant authority, and

(b)inform the Commissioner about the transfer.

(8)This section does not affect the operation of any international agreement in force between member States and third countries in the field of judicial co-operation in criminal matters and police co-operation.

Subsequent transfers

78 Subsequent transfers

(1)Where personal data is transferred in accordance with section 73, the transferring controller must make it a condition of the transfer that the data is not to be further transferred to a third country or international organisation without the authorisation of the transferring controller or another competent authority.

(2)A competent authority may give an authorisation under subsection (1) only where the further transfer is necessary for a law enforcement purpose.

(3)In deciding whether to give the authorisation, the competent authority must take into account (among any other relevant factors)—

(a)the seriousness of the circumstances leading to the request for authorisation,

(b)the purpose for which the personal data was originally transferred, and

(c)the standards for the protection of personal data that apply in the third country or international organisation to which the personal data would be transferred.

(4)In a case where the personal data was originally transmitted or otherwise made available to the transferring controller or another competent authority by a member State other than the United Kingdom, an authorisation may not be given under subsection (1) unless that member State, or any person based in that member State which is a competent authority for the purposes of the Law Enforcement Directive, has authorised the transfer in accordance with the law of the member State.

(5)Authorisation is not required as mentioned in subsection (4) if—

(a)the transfer is necessary for the prevention of an immediate and serious threat either to the public security of a member State or a third country or to the essential interests of a member State, and

(b)the authorisation cannot be obtained in good time.

(6)Where a transfer is made without the authorisation mentioned in subsection (4), the authority in the member State which would have been responsible for deciding whether to authorise the transfer must be informed without delay.

CHAPTER 6 Supplementary

79 National security: certificate

(1)A Minister of the Crown may issue a certificate certifying, for the purposes of section 44(4), 45(4), 48(3) or 68(7), that a restriction is a necessary and proportionate measure to protect national security.

(2)The certificate may—

(a)relate to a specific restriction (described in the certificate) which a controller has imposed or is proposing to impose under section 44(4), 45(4), 48(3) or 68(7), or

(b)identify any restriction to which it relates by means of a general description.

(3)Subject to subsection (6), a certificate issued under subsection (1) is conclusive evidence that the specific restriction or (as the case may be) any restriction falling within the general description is, or at any time was, a necessary and proportionate measure to protect national security.

(4)A certificate issued under subsection (1) may be expressed to have prospective effect.

(5)Any person directly affected by the issuing of a certificate under subsection (1) may appeal to the Tribunal against the certificate.

(6)If, on an appeal under subsection (5), the Tribunal finds that, applying the principles applied by a court on an application for judicial review, the Minister did not have reasonable grounds for issuing the certificate, the Tribunal may —

(a)allow the appeal, and

(b)quash the certificate.

(7)Where in any proceedings under or by virtue of this Act, it is claimed by a controller that a restriction falls within a general description in a certificate issued under subsection (1), any other party to the proceedings may appeal to the Tribunal on the ground that the restriction does not fall within that description.

(8)But, subject to any determination under subsection (9), the restriction is to be conclusively presumed to fall within the general description.

(9)On an appeal under subsection (7), the Tribunal may determine that the certificate does not so apply.

(10)A document purporting to be a certificate under subsection (1) is to be—

(a)received in evidence, and

(b)deemed to be such a certificate unless the contrary is proved.

(11)A document which purports to be certified by or on behalf of a Minister of the Crown as a true copy of a certificate issued by that Minister under subsection (1) is—

(a)in any legal proceedings, evidence of that certificate, and

(b)in any legal proceedings in Scotland, sufficient evidence of that certificate.

(12)The power conferred by subsection (1) on a Minister of the Crown is exercisable only by—

(a)a Minister who is a member of the Cabinet, or

(b)the Attorney General or the Advocate General for Scotland.

(13)No power conferred by any provision of Part 6 may be exercised in relation to the imposition of—

(a)a specific restriction in a certificate under subsection (1), or

(b)a restriction falling within a general description in such a certificate.

80 Special processing restrictions

(1)Subsections (3) and (4) apply where, for a law enforcement purpose, a controller transmits or otherwise makes available personal data to an EU recipient or a non-EU recipient.

(2)In this section—

“EU recipient” means—

(a)a recipient in a member State other than the United Kingdom, or

(b)an agency, office or body established pursuant to Chapters 4 and 5 of Title V of the Treaty on the Functioning of the European Union;

“non-EU recipient” means—

(a)a recipient in a third country, or

(b)an international organisation.

(3)The controller must consider whether, if the personal data had instead been transmitted or otherwise made available within the United Kingdom to another competent authority, processing of the data by the other competent authority would have been subject to any restrictions by virtue of any enactment or rule of law.

(4)Where that would be the case, the controller must inform the EU recipient or non-EU recipient that the data is transmitted or otherwise made available subject to compliance by that person with the same restrictions (which must be set out in the information given to that person).

(5)Except as provided by subsection (4), the controller may not impose restrictions on the processing of personal data transmitted or otherwise made available by the controller to an EU recipient.

(6)Subsection (7) applies where—

(a)a competent authority for the purposes of the Law Enforcement Directive in a member State other than the United Kingdom transmits or otherwise makes available personal data to a controller for a law enforcement purpose, and

(b)the competent authority in the other member State informs the controller, in accordance with any law of that member State which implements Article 9(3) and (4) of the Law Enforcement Directive, that the data is transmitted or otherwise made available subject to compliance by the controller with restrictions set out by the competent authority.

(7)The controller must comply with the restrictions.

81 Reporting of infringements

(1)Each controller must implement effective mechanisms to encourage the reporting of an infringement of this Part.

(2)The mechanisms implemented under subsection (1) must provide that an infringement may be reported to any of the following persons—

(a)the controller;

(b)the Commissioner.

(3)The mechanisms implemented under subsection (1) must include—

(a)raising awareness of the protections provided by Part 4A of the Employment Rights Act 1996 and Part 5A of the Employment Rights (Northern Ireland) Order 1996 (S.I. 1996/1919 (N.I. 16)), and

(b)such other protections for a person who reports an infringement of this Part as the controller considers appropriate.

(4)A person who reports an infringement of this Part does not breach—

(a)an obligation of confidence owed by the person, or

(b)any other restriction on the disclosure of information (however imposed).

(5)Subsection (4) does not apply if or to the extent that the report includes a disclosure which is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.

(6)Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (5) has effect as if it included a reference to that Part.

PART 4 Intelligence services processing

CHAPTER 1 Scope and definitions

Scope

82 Processing to which this Part applies

(1)This Part applies to—

(a)the processing by an intelligence service of personal data wholly or partly by automated means, and

(b)the processing by an intelligence service otherwise than by automated means of personal data which forms part of a filing system or is intended to form part of a filing system.

(2)In this Part, “intelligence service” means—

(a)the Security Service;

(b)the Secret Intelligence Service;

(c)the Government Communications Headquarters.

(3)A reference in this Part to the processing of personal data is to processing to which this Part applies.

Definitions

83 Meaning of “controller” and “processor”

(1)In this Part, “controller” means the intelligence service which, alone or jointly with others—

(a)determines the purposes and means of the processing of personal data, or

(b)is the controller by virtue of subsection (2).

(2)Where personal data is processed only—

(a)for purposes for which it is required by an enactment to be processed, and

(b)by means by which it is required by an enactment to be processed,

the intelligence service on which the obligation to process the data is imposed by the enactment (or, if different, one of the enactments) is the controller.

(3)In this Part, “processor” means any person who processes personal data on behalf of the controller (other than a person who is an employee of the controller).

84 Other definitions

(1)This section defines other expressions used in this Part.

(2)“Consent”, in relation to the processing of personal data relating to an individual, means a freely given, specific, informed and unambiguous indication of the individual's wishes by which the individual, by a statement or by a clear affirmative action, signifies agreement to the processing of the personal data.

(3)“Employee”, in relation to any person, includes an individual who holds a position (whether paid or unpaid) under the direction and control of that person.

(4)“Personal data breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed.

(5)“Recipient”, in relation to any personal data, means any person to whom the data is disclosed, whether a third party or not, but it does not include a person to whom disclosure is or may be made in the framework of a particular inquiry in accordance with the law.

(6)“Restriction of processing” means the marking of stored personal data with the aim of limiting its processing for the future.

(7)Sections 3 and 205 include definitions of other expressions used in this Part.

CHAPTER 2 Principles

Overview

85 Overview

(1)This Chapter sets out the six data protection principles as follows—

(a)section 86 sets out the first data protection principle (requirement that processing be lawful, fair and transparent);

(b)section 87 sets out the second data protection principle (requirement that the purposes of processing be specified, explicit and legitimate);

(c)section 88 sets out the third data protection principle (requirement that personal data be adequate, relevant and not excessive);

(d)section 89 sets out the fourth data protection principle (requirement that personal data be accurate and kept up to date);

(e)section 90 sets out the fifth data protection principle (requirement that personal data be kept for no longer than is necessary);

(f)section 91 sets out the sixth data protection principle (requirement that personal data be processed in a secure manner).

(2)Each of sections 86, 87 and 91 makes provision to supplement the principle to which it relates.

The data protection principles

86 The first data protection principle

(1)The first data protection principle is that the processing of personal data must be—

(a)lawful, and

(b)fair and transparent.

(2)The processing of personal data is lawful only if and to the extent that—

(a)at least one of the conditions in Schedule 9 is met, and

(b)in the case of sensitive processing, at least one of the conditions in Schedule 10 is also met.

(3)The Secretary of State may by regulations amend Schedule 10—

(a)by adding conditions;

(b)by omitting conditions added by regulations under paragraph (a).

(4)Regulations under subsection (3) are subject to the affirmative resolution procedure.

(5)In determining whether the processing of personal data is fair and transparent, regard is to be had to the method by which it is obtained.

(6)For the purposes of subsection (5), data is to be treated as obtained fairly and transparently if it consists of information obtained from a person who—

(a)is authorised by an enactment to supply it, or

(b)is required to supply it by an enactment or by an international obligation of the United Kingdom.

(7)In this section, “sensitive processing” means—

(a)the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership;

(b)the processing of genetic data for the purpose of uniquely identifying an individual;

(c)the processing of biometric data for the purpose of uniquely identifying an individual;

(d)the processing of data concerning health;

(e)the processing of data concerning an individual's sex life or sexual orientation;

(f)the processing of personal data as to—

(i)the commission or alleged commission of an offence by an individual, or

(ii)proceedings for an offence committed or alleged to have been committed by an individual, the disposal of such proceedings or the sentence of a court in such proceedings.

87 The second data protection principle

(1)The second data protection principle is that—

(a)the purpose for which personal data is collected on any occasion must be specified, explicit and legitimate, and

(b)personal data so collected must not be processed in a manner that is incompatible with the purpose for which it is collected.

(2)Paragraph (b) of the second data protection principle is subject to subsections (3) and (4).

(3)Personal data collected by a controller for one purpose may be processed for any other purpose of the controller that collected the data or any purpose of another controller provided that—

(a)the controller is authorised by law to process the data for that purpose, and

(b)the processing is necessary and proportionate to that other purpose.

(4)Processing of personal data is to be regarded as compatible with the purpose for which it is collected if the processing—

(a)consists of—

(i)processing for archiving purposes in the public interest,

(ii)processing for the purposes of scientific or historical research, or

(iii)processing for statistical purposes, and

(b)is subject to appropriate safeguards for the rights and freedoms of the data subject.

88 The third data protection principle

The third data protection principle is that personal data must be adequate, relevant and not excessive in relation to the purpose for which it is processed.

89 The fourth data protection principle

The fourth data protection principle is that personal data undergoing processing must be accurate and, where necessary, kept up to date.

90 The fifth data protection principle

The fifth data protection principle is that personal data must be kept for no longer than is necessary for the purpose for which it is processed.

91 The sixth data protection principle

(1)The sixth data protection principle is that personal data must be processed in a manner that includes taking appropriate security measures as regards risks that arise from processing personal data.

(2)The risks referred to in subsection (1) include (but are not limited to) accidental or unauthorised access to, or destruction, loss, use, modification or disclosure of, personal data.

CHAPTER 3 Rights of the data subject

Overview

92 Overview

(1)This Chapter sets out the rights of the data subject as follows—

(a)section 93 deals with the information to be made available to the data subject;

(b)sections 94 and 95 deal with the right of access by the data subject;

(c)sections 96 and 97 deal with rights in relation to automated processing;

(d)section 98 deals with the right to information about decision-making;

(e)section 99 deals with the right to object to processing;

(f)section 100 deals with rights to rectification and erasure of personal data.

(2)In this Chapter, “the controller”, in relation to a data subject, means the controller in relation to personal data relating to the data subject.

Rights

93 Right to information

(1)The controller must give a data subject the following information—

(a)the identity and the contact details of the controller;

(b)the legal basis on which, and the purposes for which, the controller processes personal data;

(c)the categories of personal data relating to the data subject that are being processed;

(d)the recipients or the categories of recipients of the personal data (if applicable);

(e)the right to lodge a complaint with the Commissioner and the contact details of the Commissioner;

(f)how to exercise rights under this Chapter;

(g)any other information needed to secure that the personal data is processed fairly and transparently.

(2)The controller may comply with subsection (1) by making information generally available, where the controller considers it appropriate to do so.

(3)The controller is not required under subsection (1) to give a data subject information that the data subject already has.

(4)Where personal data relating to a data subject is collected by or on behalf of the controller from a person other than the data subject, the requirement in subsection (1) has effect, in relation to the personal data so collected, with the following exceptions—

(a)the requirement does not apply in relation to processing that is authorised by an enactment;

(b)the requirement does not apply in relation to the data subject if giving the information to the data subject would be impossible or involve disproportionate effort.

94 Right of access

(1)An individual is entitled to obtain from a controller—

(a)confirmation as to whether or not personal data concerning the individual is being processed, and

(b)where that is the case—

(i)communication, in intelligible form, of the personal data of which that individual is the data subject, and

(ii)the information set out in subsection (2).

(2)That information is—

(a)the purposes of and legal basis for the processing;

(b)the categories of personal data concerned;

(c)the recipients or categories of recipients to whom the personal data has been disclosed;

(d)the period for which the personal data is to be preserved;

(e)the existence of a data subject's rights to rectification and erasure of personal data (see section 100);

(f)the right to lodge a complaint with the Commissioner and the contact details of the Commissioner;

(g)any information about the origin of the personal data concerned.

(3)A controller is not obliged to provide information under this section unless the controller has received such reasonable fee as the controller may require, subject to subsection (4).

(4)The Secretary of State may by regulations—

(a)specify cases in which a controller may not charge a fee;

(b)specify the maximum amount of a fee.

(5)Where a controller—

(a)reasonably requires further information—

(i)in order that the controller be satisfied as to the identity of the individual making a request under subsection (1), or

(ii)to locate the information which that individual seeks, and

(b)has informed that individual of that requirement,

the controller is not obliged to comply with the request unless the controller is supplied with that further information.

(6)Where a controller cannot comply with the request without disclosing information relating to another individual who can be identified from that information, the controller is not obliged to comply with the request unless—

(a)the other individual has consented to the disclosure of the information to the individual making the request, or

(b)it is reasonable in all the circumstances to comply with the request without the consent of the other individual.

(7)In subsection (6), the reference to information relating to another individual includes a reference to information identifying that individual as the source of the information sought by the request.

(8)Subsection (6) is not to be construed as excusing a controller from communicating so much of the information sought by the request as can be communicated without disclosing the identity of the other individual concerned, whether by the omission of names or other identifying particulars or otherwise.

(9)In determining for the purposes of subsection (6)(b) whether it is reasonable in all the circumstances to comply with the request without the consent of the other individual concerned, regard must be had, in particular, to—

(a)any duty of confidentiality owed to the other individual,

(b)any steps taken by the controller with a view to seeking the consent of the other individual,

(c)whether the other individual is capable of giving consent, and

(d)any express refusal of consent by the other individual.

(10)Subject to subsection (6), a controller must comply with a request under subsection (1)—

(a)promptly, and

(b)in any event before the end of the applicable time period.

(11)If a court is satisfied on the application of an individual who has made a request under subsection (1) that the controller in question has failed to comply with the request in contravention of this section, the court may order the controller to comply with the request.

(12)A court may make an order under subsection (11) in relation to a joint controller whose responsibilities are determined in an arrangement under section 104 only if the controller is responsible for compliance with the obligation to which the order relates.

(13)The jurisdiction conferred on a court by this section is exercisable by the High Court or, in Scotland, by the Court of Session.

(14)In this section—

“the applicable time period” means—

(a)the period of 1 month, or

(b)such longer period, not exceeding 3 months, as may be specified in regulations made by the Secretary of State,

beginning with the relevant time;

“the relevant time”, in relation to a request under subsection (1), means the latest of the following—

(a)when the controller receives the request,

(b)when the fee (if any) is paid, and

(c)when the controller receives the information (if any) required under subsection (5) in connection with the request.

(15)Regulations under this section are subject to the negative resolution procedure.

95 Right of access: supplementary

(1)The controller must comply with the obligation imposed by section 94(1)(b)(i) by supplying the data subject with a copy of the information in writing unless—

(a)the supply of such a copy is not possible or would involve disproportionate effort, or

(b)the data subject agrees otherwise;

and where any of the information referred to in section 94(1)(b)(i) is expressed in terms which are not intelligible without explanation the copy must be accompanied by an explanation of those terms.

(2)Where a controller has previously complied with a request made under section 94 by an individual, the controller is not obliged to comply with a subsequent identical or similar request under that section by that individual unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request.

(3)In determining for the purposes of subsection (2) whether requests under section 94 are made at reasonable intervals, regard must be had to—

(a)the nature of the data,

(b)the purpose for which the data is processed, and

(c)the frequency with which the data is altered.

(4)The information to be supplied pursuant to a request under section 94 must be supplied by reference to the data in question at the time when the request is received, except that it may take account of any amendment or deletion made between that time and the time when the information is supplied, being an amendment or deletion that would have been made regardless of the receipt of the request.

(5)For the purposes of section 94(6) to (8), an individual can be identified from information to be disclosed to a data subject by a controller if the individual can be identified from—

(a)that information, or

(b)that and any other information that the controller reasonably believes the data subject making the request is likely to possess or obtain.

96 Right not to be subject to automated decision-making

(1)The controller may not take a decision significantly affecting a data subject that is based solely on automated processing of personal data relating to the data subject.

(2)Subsection (1) does not prevent such a decision being made on that basis if—

(a)the decision is required or authorised by law,

(b)the data subject has given consent to the decision being made on that basis, or

(c)the decision is a decision taken in the course of steps taken—

(i)for the purpose of considering whether to enter into a contract with the data subject,

(ii)with a view to entering into such a contract, or

(iii)in the course of performing such a contract.

(3)For the purposes of this section, a decision that has legal effects as regards an individual is to be regarded as significantly affecting the individual.

97 Right to intervene in automated decision-making

(1)This section applies where—

(a)the controller takes a decision significantly affecting a data subject that is based solely on automated processing of personal data relating to the data subject, and

(b)the decision is required or authorised by law.

(2)This section does not apply to such a decision if—

(a)the data subject has given consent to the decision being made on that basis, or

(b)the decision is a decision taken in the course of steps taken—

(i)for the purpose of considering whether to enter into a contract with the data subject,

(ii)with a view to entering into such a contract, or

(iii)in the course of performing such a contract.

(3)The controller must as soon as reasonably practicable notify the data subject that such a decision has been made.

(4)The data subject may, before the end of the period of 1 month beginning with receipt of the notification, request the controller—

(a)to reconsider the decision, or

(b)to take a new decision that is not based solely on automated processing.

(5)If a request is made to the controller under subsection (4), the controller must, before the end of the period of 1 month beginning with receipt of the request—

(a)consider the request, including any information provided by the data subject that is relevant to it, and

(b)by notice in writing inform the data subject of the outcome of that consideration.

(6)For the purposes of this section, a decision that has legal effects as regards an individual is to be regarded as significantly affecting the individual.

98 Right to information about decision-making

(1)Where—

(a)the controller processes personal data relating to a data subject, and

(b)results produced by the processing are applied to the data subject,

the data subject is entitled to obtain from the controller, on request, knowledge of the reasoning underlying the processing.

(2)Where the data subject makes a request under subsection (1), the controller must comply with the request without undue delay.

99 Right to object to processing

(1)A data subject is entitled at any time, by notice given to the controller, to require the controller—

(a)not to process personal data relating to the data subject, or

(b)not to process such data for a specified purpose or in a specified manner,

on the ground that, for specified reasons relating to the situation of the data subject, the processing in question is an unwarranted interference with the interests or rights of the data subject.

(2)Where the controller—

(a)reasonably requires further information—

(i)in order that the controller be satisfied as to the identity of the individual giving notice under subsection (1), or

(ii)to locate the data to which the notice relates, and

(b)has informed that individual of that requirement,

the controller is not obliged to comply with the notice unless the controller is supplied with that further information.

(3)The controller must, before the end of 21 days beginning with the relevant time, give a notice to the data subject—

(a)stating that the controller has complied or intends to comply with the notice under subsection (1), or

(b)stating the controller's reasons for not complying with the notice to any extent and the extent (if any) to which the controller has complied or intends to comply with the notice under subsection (1).

(4)If the controller does not comply with a notice under subsection (1) to any extent, the data subject may apply to a court for an order that the controller take steps for complying with the notice.

(5)If the court is satisfied that the controller should comply with the notice (or should comply to any extent), the court may order the controller to take such steps for complying with the notice (or for complying with it to that extent) as the court thinks fit.

(6)A court may make an order under subsection (5) in relation to a joint controller whose responsibilities are determined in an arrangement under section 104 only if the controller is responsible for compliance with the obligation to which the order relates.

(7)The jurisdiction conferred on a court by this section is exercisable by the High Court or, in Scotland, by the Court of Session.

(8)In this section, “the relevant time”, in relation to a notice under subsection (1), means—

(a)when the controller receives the notice, or

(b)if later, when the controller receives the information (if any) required under subsection (2) in connection with the notice.

100 Rights to rectification and erasure

(1)If a court is satisfied on the application of a data subject that personal data relating to the data subject is inaccurate, the court may order the controller to rectify that data without undue delay.

(2)If a court is satisfied on the application of a data subject that the processing of personal data relating to the data subject would infringe any of sections 86 to 91, the court may order the controller to erase that data without undue delay.

(3)If personal data relating to the data subject must be maintained for the purposes of evidence, the court may (instead of ordering the controller to rectify or erase the personal data) order the controller to restrict its processing without undue delay.

(4)If—

(a)the data subject contests the accuracy of personal data, and

(b)the court is satisfied that the controller is not able to ascertain whether the data is accurate or not,

the court may (instead of ordering the controller to rectify or erase the personal data) order the controller to restrict its processing without undue delay.

(5)A court may make an order under this section in relation to a joint controller whose responsibilities are determined in an arrangement under section 104 only if the controller is responsible for carrying out the rectification, erasure or restriction of processing that the court proposes to order.

(6)The jurisdiction conferred on a court by this section is exercisable by the High Court or, in Scotland, by the Court of Session.

CHAPTER 4 Controller and processor

Overview

101 Overview

This Chapter sets out—

(a)the general obligations of controllers and processors (see sections 102 to 106);

(b)specific obligations of controllers and processors with respect to security (see section 107);

(c)specific obligations of controllers and processors with respect to personal data breaches (see section 108).

General obligations

102 General obligations of the controller

Each controller must implement appropriate measures—

(a)to ensure, and

(b)to be able to demonstrate, in particular to the Commissioner,

that the processing of personal data complies with the requirements of this Part.

103 Data protection by design

(1)Where a controller proposes that a particular type of processing of personal data be carried out by or on behalf of the controller, the controller must, prior to the processing, consider the impact of the proposed processing on the rights and freedoms of data subjects.

(2)A controller must implement appropriate technical and organisational measures which are designed to ensure that—

(a)the data protection principles are implemented, and

(b)risks to the rights and freedoms of data subjects are minimised.

104 Joint controllers

(1)Where two or more intelligence services jointly determine the purposes and means of processing personal data, they are joint controllers for the purposes of this Part.

(2)Joint controllers must, in a transparent manner, determine their respective responsibilities for compliance with this Part by means of an arrangement between them, except to the extent that those responsibilities are determined under or by virtue of an enactment.

(3)The arrangement must designate the controller which is to be the contact point for data subjects.

105 Processors

(1)This section applies to the use by a controller of a processor to carry out processing of personal data on behalf of the controller.

(2)The controller may use only a processor who undertakes—

(a)to implement appropriate measures that are sufficient to secure that the processing complies with this Part;

(b)to provide to the controller such information as is necessary for demonstrating that the processing complies with this Part.

(3)If a processor determines, in breach of this Part, the purposes and means of processing, the processor is to be treated for the purposes of this Part as a controller in respect of that processing.

106 Processing under the authority of the controller or processor

A processor, and any person acting under the authority of a controller or processor, who has access to personal data may not process the data except—

(a)on instructions from the controller, or

(b)to comply with a legal obligation.

Obligations relating to security

107 Security of processing

(1)Each controller and each processor must implement security measures appropriate to the risks arising from the processing of personal data.

(2)In the case of automated processing, each controller and each processor must, following an evaluation of the risks, implement measures designed to—

(a)prevent unauthorised processing or unauthorised interference with the systems used in connection with it,

(b)ensure that it is possible to establish the precise details of any processing that takes place,

(c)ensure that any systems used in connection with the processing function properly and may, in the case of interruption, be restored, and

(d)ensure that stored personal data cannot be corrupted if a system used in connection with the processing malfunctions.

Obligations relating to personal data breaches

108 Communication of a personal data breach

(1)If a controller becomes aware of a serious personal data breach in relation to personal data for which the controller is responsible, the controller must notify the Commissioner of the breach without undue delay.

(2)Where the notification to the Commissioner is not made within 72 hours, the notification must be accompanied by reasons for the delay.

(3)Subject to subsection (4), the notification must include—

(a)a description of the nature of the personal data breach including, where possible, the categories and approximate number of data subjects concerned and the categories and approximate number of personal data records concerned;

(b)the name and contact details of the contact point from whom more information can be obtained;

(c)a description of the likely consequences of the personal data breach;

(d)a description of the measures taken or proposed to be taken by the controller to address the personal data breach, including, where appropriate, measures to mitigate its possible adverse effects.

(4)Where and to the extent that it is not possible to provide all the information mentioned in subsection (3) at the same time, the information may be provided in phases without undue further delay.

(5)If a processor becomes aware of a personal data breach (in relation to data processed by the processor), the processor must notify the controller without undue delay.

(6)Subsection (1) does not apply in relation to a personal data breach if the breach also constitutes a relevant error within the meaning given by section 231(9) of the Investigatory Powers Act 2016.

(7)For the purposes of this section, a personal data breach is serious if the breach seriously interferes with the rights and freedoms of a data subject.

CHAPTER 5 Transfers of personal data outside the United Kingdom

109 Transfers of personal data outside the United Kingdom

(1)A controller may not transfer personal data to—

(a)a country or territory outside the United Kingdom, or

(b)an international organisation,

unless the transfer falls within subsection (2).

(2)A transfer of personal data falls within this subsection if the transfer is a necessary and proportionate measure carried out—

(a)for the purposes of the controller's statutory functions, or

(b)for other purposes provided for, in relation to the controller, in section 2(2)(a) of the Security Service Act 1989 or section 2(2)(a) or 4(2)(a) of the Intelligence Services Act 1994.

CHAPTER 6 Exemptions

110 National security

(1)A provision mentioned in subsection (2) does not apply to personal data to which this Part applies if exemption from the provision is required for the purpose of safeguarding national security.

(2)The provisions are—

(a)Chapter 2 (the data protection principles), except section 86(1)(a) and (2) and Schedules 9 and 10;

(b)Chapter 3 (rights of data subjects);

(c)in Chapter 4 , section 108 (communication of a personal data breach to the Commissioner);

(d)in Part 5—

(i)section 119 (inspection in accordance with international obligations);

(ii)in Schedule 13 (other general functions of the Commissioner), paragraphs 1(a) and (g) and 2;

(e)in Part 6—

(i)sections 142 to 154 and Schedule 15 (Commissioner's notices and powers of entry and inspection);

(ii)sections 170 to 173 (offences relating to personal data);

(iii)sections 174 to 176 (provision relating to the special purposes).

111 National security: certificate

(1)Subject to subsection (3), a certificate signed by a Minister of the Crown certifying that exemption from all or any of the provisions mentioned in section 110(2) is, or at any time was, required for the purpose of safeguarding national security in respect of any personal data is conclusive evidence of that fact.

(2)A certificate under subsection (1)—

(a)may identify the personal data to which it applies by means of a general description, and

(b)may be expressed to have prospective effect.

(3)Any person directly affected by the issuing of a certificate under subsection (1) may appeal to the Tribunal against the certificate.

(4)If on an appeal under subsection (3), the Tribunal finds that, applying the principles applied by a court on an application for judicial review, the Minister did not have reasonable grounds for issuing the certificate, the Tribunal may—

(a)allow the appeal, and

(b)quash the certificate.

(5)Where, in any proceedings under or by virtue of this Act, it is claimed by a controller that a certificate under subsection (1) which identifies the personal data to which it applies by means of a general description applies to any personal data, another party to the proceedings may appeal to the Tribunal on the ground that the certificate does not apply to the personal data in question.

(6)But, subject to any determination under subsection (7), the certificate is to be conclusively presumed so to apply.

(7)On an appeal under subsection (5), the Tribunal may determine that the certificate does not so apply.

(8)A document purporting to be a certificate under subsection (1) is to be—

(a)received in evidence, and

(b)deemed to be such a certificate unless the contrary is proved.

(9)A document which purports to be certified by or on behalf of a Minister of the Crown as a true copy of a certificate issued by that Minister under subsection (1) is—

(a)in any legal proceedings, evidence of that certificate, and

(b)in any legal proceedings in Scotland, sufficient evidence of that certificate.

(10)The power conferred by subsection (1) on a Minister of the Crown is exercisable only by—

(a)a Minister who is a member of the Cabinet, or

(b)the Attorney General or the Advocate General for Scotland.

112 Other exemptions

Schedule 11 provides for further exemptions.

113 Power to make further exemptions

(1)The Secretary of State may by regulations amend Schedule 11—

(a)by adding exemptions from any provision of this Part;

(b)by omitting exemptions added by regulations under paragraph (a).

(2)Regulations under this section are subject to the affirmative resolution procedure.

PART 5 The Information Commissioner

The Commissioner

114 The Information Commissioner

(1)There is to continue to be an Information Commissioner.

(2)Schedule 12 makes provision about the Commissioner.

General functions

115 General functions under the GDPR and safeguards

(1)The Commissioner is to be the supervisory authority in the United Kingdom for the purposes of Article 51 of the GDPR.

(2)General functions are conferred on the Commissioner by—

(a)Article 57 of the GDPR (tasks), and

(b)Article 58 of the GDPR (powers),

(and see also the Commissioner's duty under section 2).

(3)The Commissioner's functions in relation to the processing of personal data to which the GDPR applies include—

(a)a duty to advise Parliament, the government and other institutions and bodies on legislative and administrative measures relating to the protection of individuals' rights and freedoms with regard to the processing of personal data, and

(b)a power to issue, on the Commissioner's own initiative or on request, opinions to Parliament, the government or other institutions and bodies as well as to the public on any issue related to the protection of personal data.

(4)The Commissioner's functions under Article 58 of the GDPR are subject to the safeguards in subsections (5) to (9).

(5)The Commissioner's power under Article 58(1)(a) of the GDPR (power to require a controller or processor to provide information that the Commissioner requires for the performance of the Commissioner's tasks under the GDPR) is exercisable only by giving an information notice under section 142.

(6)The Commissioner's power under Article 58(1)(b) of the GDPR (power to carry out data protection audits) is exercisable only in accordance with section 146.

(7)The Commissioner's powers under Article 58(1)(e) and (f) of the GDPR (power to obtain information from controllers and processors and access to their premises) are exercisable only—

(a)in accordance with Schedule 15 (see section 154), or

(b)to the extent that they are exercised in conjunction with the power under Article 58(1)(b) of the GDPR, in accordance with section 146.

(8)The following powers are exercisable only by giving an enforcement notice under section 149—

(a)the Commissioner's powers under Article 58(2)(c) to (g) and (j) of the GDPR (certain corrective powers);

(b)the Commissioner's powers under Article 58(2)(h) to order a certification body to withdraw, or not to issue, a certification under Articles 42 and 43 of the GDPR.

(9)The Commissioner's powers under Articles 58(2)(i) and 83 of the GDPR (administrative fines) are exercisable only by giving a penalty notice under section 155.

(10)This section is without prejudice to other functions conferred on the Commissioner, whether by the GDPR, this Act or otherwise.

116 Other general functions

(1)The Commissioner—

(a)is to be the supervisory authority in the United Kingdom for the purposes of Article 41 of the Law Enforcement Directive, and

(b)is to continue to be the designated authority in the United Kingdom for the purposes of Article 13 of the Data Protection Convention.

(2)Schedule 13 confers general functions on the Commissioner in connection with processing to which the GDPR does not apply (and see also the Commissioner's duty under section 2).

(3)This section and Schedule 13 are without prejudice to other functions conferred on the Commissioner, whether by this Act or otherwise.

117 Competence in relation to courts etc

Nothing in this Act permits or requires the Commissioner to exercise functions in relation to the processing of personal data by—

(a)an individual acting in a judicial capacity, or

(b)a court or tribunal acting in its judicial capacity,

(and see also Article 55(3) of the GDPR).

International role

118 Co-operation and mutual assistance

(1)Articles 60 to 62 of the GDPR confer functions on the Commissioner in relation to co-operation and mutual assistance between, and joint operations of, supervisory authorities under the GDPR.

(2)References to the GDPR in subsection (1) do not include the applied GDPR.

(3)Article 61 of the applied GDPR confers functions on the Commissioner in relation to co-operation with other supervisory authorities (as defined in Article 4(21) of the applied GDPR).

(4)Part 1 of Schedule 14 makes provision as to the functions to be carried out by the Commissioner for the purposes of Article 50 of the Law Enforcement Directive (mutual assistance).

(5)Part 2 of Schedule 14 makes provision as to the functions to be carried out by the Commissioner for the purposes of Article 13 of the Data Protection Convention (co-operation between parties).

119 Inspection of personal data in accordance with international obligations

(1)The Commissioner may inspect personal data where the inspection is necessary in order to discharge an international obligation of the United Kingdom, subject to the restriction in subsection (2).

(2)The power under subsection (1) is exercisable only if the personal data—

(a)is processed wholly or partly by automated means, or

(b)is processed otherwise than by automated means and forms part of a filing system or is intended to form part of a filing system.

(3)The power under subsection (1) includes power to inspect, operate and test equipment which is used for the processing of personal data.

(4)Before exercising the power under subsection (1), the Commissioner must by written notice inform the controller and any processor that the Commissioner intends to do so.

(5)Subsection (4) does not apply if the Commissioner considers that the case is urgent.

(6)It is an offence—

(a)intentionally to obstruct a person exercising the power under subsection (1), or

(b)to fail without reasonable excuse to give a person exercising that power any assistance the person may reasonably require.

(7)Paragraphs (c) and (d) of section 3(14) do not apply to references in this section to personal data, the processing of personal data, a controller or a processor.

120 Further international role

(1)The Commissioner must, in relation to third countries and international organisations, take appropriate steps to—

(a)develop international co-operation mechanisms to facilitate the effective enforcement of legislation for the protection of personal data;

(b)provide international mutual assistance in the enforcement of legislation for the protection of personal data, subject to appropriate safeguards for the protection of personal data and other fundamental rights and freedoms;

(c)engage relevant stakeholders in discussion and activities aimed at furthering international co-operation in the enforcement of legislation for the protection of personal data;

(d)promote the exchange and documentation of legislation and practice for the protection of personal data, including legislation and practice relating to jurisdictional conflicts with third countries.

(2)Subsection (1) applies only in connection with the processing of personal data to which the GDPR does not apply; for the equivalent duty in connection with the processing of personal data to which the GDPR applies, see Article 50 of the GDPR (international co-operation for the protection of personal data).

(3)The Commissioner must carry out data protection functions which the Secretary of State directs the Commissioner to carry out for the purpose of enabling Her Majesty's Government in the United Kingdom to give effect to an international obligation of the United Kingdom.

(4)The Commissioner may provide an authority carrying out data protection functions under the law of a British overseas territory with assistance in carrying out those functions.

(5)The Secretary of State may direct that assistance under subsection (4) is to be provided on terms, including terms as to payment, specified or approved by the Secretary of State.

(6)In this section—

“data protection functions” means functions relating to the protection of individuals with respect to the processing of personal data;

“mutual assistance in the enforcement of legislation for the protection of personal data” includes assistance in the form of notification, complaint referral, investigative assistance and information exchange;

“third country” means a country or territory that is not a member State.

(7)Section 3(14)(c) does not apply to references to personal data and the processing of personal data in this section.

Codes of practice

121 Data-sharing code

(1)The Commissioner must prepare a code of practice which contains—

(a)practical guidance in relation to the sharing of personal data in accordance with the requirements of the data protection legislation, and

(b)such other guidance as the Commissioner considers appropriate to promote good practice in the sharing of personal data.

(2)Where a code under this section is in force, the Commissioner may prepare amendments of the code or a replacement code.

(3)Before preparing a code or amendments under this section, the Commissioner must consult the Secretary of State and such of the following as the Commissioner considers appropriate—

(a)trade associations;

(b)data subjects;

(c)persons who appear to the Commissioner to represent the interests of data subjects.

(4)A code under this section may include transitional provision or savings.

(5)In this section—

“good practice in the sharing of personal data” means such practice in the sharing of personal data as appears to the Commissioner to be desirable having regard to the interests of data subjects and others, including compliance with the requirements of the data protection legislation;

“the sharing of personal data” means the disclosure of personal data by transmission, dissemination or otherwise making it available;

“trade association” includes a body representing controllers or processors.

122 Direct marketing code

(1)The Commissioner must prepare a code of practice which contains—

(a)practical guidance in relation to the carrying out of direct marketing in accordance with the requirements of the data protection legislation and the Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426), and

(b)such other guidance as the Commissioner considers appropriate to promote good practice in direct marketing.

(2)Where a code under this section is in force, the Commissioner may prepare amendments of the code or a replacement code.

(3)Before preparing a code or amendments under this section, the Commissioner must consult the Secretary of State and such of the following as the Commissioner considers appropriate—

(a)trade associations;

(b)data subjects;

(c)persons who appear to the Commissioner to represent the interests of data subjects.

(4)A code under this section may include transitional provision or savings.

(5)In this section—

“direct marketing” means the communication (by whatever means) of advertising or marketing material which is directed to particular individuals;

“good practice in direct marketing” means such practice in direct marketing as appears to the Commissioner to be desirable having regard to the interests of data subjects and others, including compliance with the requirements mentioned in subsection (1)(a);

“trade association” includes a body representing controllers or processors.

123 Age-appropriate design code

(1)The Commissioner must prepare a code of practice which contains such guidance as the Commissioner considers appropriate on standards of age-appropriate design of relevant information society services which are likely to be accessed by children.

(2)Where a code under this section is in force, the Commissioner may prepare amendments of the code or a replacement code.

(3)Before preparing a code or amendments under this section, the Commissioner must consult the Secretary of State and such other persons as the Commissioner considers appropriate, including—

(a)children,

(b)parents,

(c)persons who appear to the Commissioner to represent the interests of children,

(d)child development experts, and

(e)trade associations.

(4)In preparing a code or amendments under this section, the Commissioner must have regard—

(a)to the fact that children have different needs at different ages, and

(b)to the United Kingdom's obligations under the United Nations Convention on the Rights of the Child.

(5)A code under this section may include transitional provision or savings.

(6)Any transitional provision included in the first code under this section must cease to have effect before the end of the period of 12 months beginning when the code comes into force.

(7)In this section—

“age-appropriate design” means the design of services so that they are appropriate for use by, and meet the development needs of, children;

“information society services” has the same meaning as in the GDPR, but does not include preventive or counselling services;

“relevant information society services” means information society services which involve the processing of personal data to which the GDPR applies;

“standards of age-appropriate design of relevant information society services” means such standards of age-appropriate design of such services as appear to the Commissioner to be desirable having regard to the best interests of children;

“trade association” includes a body representing controllers or processors;

“the United Nations Convention on the Rights of the Child” means the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989 (including any Protocols to that Convention which are in force in relation to the United Kingdom), subject to any reservations, objections or interpretative declarations by the United Kingdom for the time being in force.

124 Data protection and journalism code

(1)The Commissioner must prepare a code of practice which contains—

(a)practical guidance in relation to the processing of personal data for the purposes of journalism in accordance with the requirements of the data protection legislation, and

(b)such other guidance as the Commissioner considers appropriate to promote good practice in the processing of personal data for the purposes of journalism.

(2)Where a code under this section is in force, the Commissioner may prepare amendments of the code or a replacement code.

(3)Before preparing a code or amendments under this section, the Commissioner must consult such of the following as the Commissioner considers appropriate—

(a)trade associations;

(b)data subjects;

(c)persons who appear to the Commissioner to represent the interests of data subjects.

(4)A code under this section may include transitional provision or savings.

(5)In this section—

“good practice in the processing of personal data for the purposes of journalism” means such practice in the processing of personal data for those purposes as appears to the Commissioner to be desirable having regard to—

(a)the interests of data subjects and others, including compliance with the requirements of the data protection legislation, and

(b)the special importance of the public interest in the freedom of expression and information;

“trade association” includes a body representing controllers or processors.

125 Approval of codes prepared under sections 121 to 124

(1)When a code is prepared under section 121, 122, 123 or 124—

(a)the Commissioner must submit the final version to the Secretary of State, and

(b)the Secretary of State must lay the code before Parliament.

(2)In relation to the first code under section 123—

(a)the Commissioner must prepare the code as soon as reasonably practicable and must submit it to the Secretary of State before the end of the period of 18 months beginning when this Act is passed, and

(b)the Secretary of State must lay it before Parliament as soon as reasonably practicable.

(3)If, within the 40-day period, either House of Parliament resolves not to approve a code prepared under section 121, 122, 123 or 124, the Commissioner must not issue the code.

(4)If no such resolution is made within that period—

(a)the Commissioner must issue the code, and

(b)the code comes into force at the end of the period of 21 days beginning with the day on which it is issued.

(5)If, as a result of subsection (3), there is no code in force under section 121, 122, 123 or 124, the Commissioner must prepare another version of the code.

(6)Nothing in subsection (3) prevents another version of the code being laid before Parliament.

(7)In this section, “the 40-day period” means—

(a)if the code is laid before both Houses of Parliament on the same day, the period of 40 days beginning with that day, or

(b)if the code is laid before the Houses of Parliament on different days, the period of 40 days beginning with the later of those days.

(8)In calculating the 40-day period, no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses of Parliament are adjourned for more than 4 days.

(9)This section, other than subsections (2) and (5), applies in relation to amendments prepared under section 121, 122, 123 or 124 as it applies in relation to codes prepared under those sections.

126 Publication and review of codes issued under section 125(4)

(1)The Commissioner must publish a code issued under section 125(4).

(2)Where an amendment of a code is issued under section 125(4), the Commissioner must publish—

(a)the amendment, or

(b)the code as amended by it.

(3)The Commissioner must keep under review each code issued under section 125(4) for the time being in force.

(4)Where the Commissioner becomes aware that the terms of such a code could result in a breach of an international obligation of the United Kingdom, the Commissioner must exercise the power under section 121(2), 122(2), 123(2) or 124(2) with a view to remedying the situation.

127 Effect of codes issued under section 125(4)

(1)A failure by a person to act in accordance with a provision of a code issued under section 125(4) does not of itself make that person liable to legal proceedings in a court or tribunal.

(2)A code issued under section 125(4), including an amendment or replacement code, is admissible in evidence in legal proceedings.

(3)In any proceedings before a court or tribunal, the court or tribunal must take into account a provision of a code issued under section 125(4) in determining a question arising in the proceedings if—

(a)the question relates to a time when the provision was in force, and

(b)the provision appears to the court or tribunal to be relevant to the question.

(4)Where the Commissioner is carrying out a function described in subsection (5), the Commissioner must take into account a provision of a code issued under section 125(4) in determining a question arising in connection with the carrying out of the function if—

(a)the question relates to a time when the provision was in force, and

(b)the provision appears to the Commissioner to be relevant to the question.

(5)Those functions are functions under—

(a)the data protection legislation, or

(b)the Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426).

128 Other codes of practice

(1)The Secretary of State may by regulations require the Commissioner—

(a)to prepare appropriate codes of practice giving guidance as to good practice in the processing of personal data, and

(b)to make them available to such persons as the Commissioner considers appropriate.

(2)Before preparing such codes, the Commissioner must consult such of the following as the Commissioner considers appropriate—

(a)trade associations;

(b)data subjects;

(c)persons who appear to the Commissioner to represent the interests of data subjects.

(3)Regulations under this section—

(a)must describe the personal data or processing to which the code of practice is to relate, and

(b)may describe the persons or classes of person to whom it is to relate.

(4)Regulations under this section are subject to the negative resolution procedure.

(5)In this section—

“good practice in the processing of personal data” means such practice in the processing of personal data as appears to the Commissioner to be desirable having regard to the interests of data subjects and others, including compliance with the requirements of the data protection legislation;

“trade association” includes a body representing controllers or processors.

Consensual audits

129 Consensual audits

(1)The Commissioner's functions under Article 58(1) of the GDPR and paragraph 1 of Schedule 13 include power, with the consent of a controller or processor, to carry out an assessment of whether the controller or processor is complying with good practice in the processing of personal data.

(2)The Commissioner must inform the controller or processor of the results of such an assessment.

(3)In this section, “good practice in the processing of personal data” has the same meaning as in section 128.

Records of national security certificates

130 Records of national security certificates

(1)A Minister of the Crown who issues a certificate under section 27, 79 or 111 must send a copy of the certificate to the Commissioner.

(2)If the Commissioner receives a copy of a certificate under subsection (1), the Commissioner must publish a record of the certificate.

(3)The record must contain—

(a)the name of the Minister who issued the certificate,

(b)the date on which the certificate was issued, and

(c)subject to subsection (4), the text of the certificate.

(4)The Commissioner must not publish the text, or a part of the text, of the certificate if—

(a)the Minister determines that publishing the text or that part of the text—

(i)would be against the interests of national security,

(ii)would be contrary to the public interest, or

(iii)might jeopardise the safety of any person, and

(b)the Minister has notified the Commissioner of that determination.

(5)The Commissioner must keep the record of the certificate available to the public while the certificate is in force.

(6)If a Minister of the Crown revokes a certificate issued under section 27, 79 or 111, the Minister must notify the Commissioner.

Information provided to the Commissioner

131 Disclosure of information to the Commissioner

(1)No enactment or rule of law prohibiting or restricting the disclosure of information precludes a person from providing the Commissioner with information necessary for the discharge of the Commissioner's functions.

(2)But this section does not authorise the making of a disclosure which is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016.

(3)Until the repeal of Part 1 of the Regulation of Investigatory Powers Act 2000 by paragraphs 45 and 54 of Schedule 10 to the Investigatory Powers Act 2016 is fully in force, subsection (2) has effect as if it included a reference to that Part.

132 Confidentiality of information

(1)A person who is or has been the Commissioner, or a member of the Commissioner's staff or an agent of the Commissioner, must not disclose information which—

(a)has been obtained by, or provided to, the Commissioner in the course of, or for the purposes of, the discharging of the Commissioner's functions,

(b)relates to an identified or identifiable individual or business, and

(c)is not available to the public from other sources at the time of the disclosure and has not previously been available to the public from other sources,

unless the disclosure is made with lawful authority.

(2)For the purposes of subsection (1), a disclosure is made with lawful authority only if and to the extent that—

(a)the disclosure was made with the consent of the individual or of the person for the time being carrying on the business,

(b)the information was obtained or provided as described in subsection (1)(a) for the purpose of its being made available to the public (in whatever manner),

(c)the disclosure was made for the purposes of, and is necessary for, the discharge of one or more of the Commissioner's functions,

(d)the disclosure was made for the purposes of, and is necessary for, the discharge of an EU obligation,

(e)the disclosure was made for the purposes of criminal or civil proceedings, however arising, or

(f)having regard to the rights, freedoms and legitimate interests of any person, the disclosure was necessary in the public interest.

(3)It is an offence for a person knowingly or recklessly to disclose information in contravention of subsection (1).

133 Guidance about privileged communications

(1)The Commissioner must produce and publish guidance about—

(a)how the Commissioner proposes to secure that privileged communications which the Commissioner obtains or has access to in the course of carrying out the Commissioner's functions are used or disclosed only so far as necessary for carrying out those functions, and

(b)how the Commissioner proposes to comply with restrictions and prohibitions on obtaining or having access to privileged communications which are imposed by an enactment.

(2)The Commissioner—

(a)may alter or replace the guidance, and

(b)must publish any altered or replacement guidance.

(3)The Commissioner must consult the Secretary of State before publishing guidance under this section (including altered or replacement guidance).

(4)The Commissioner must arrange for guidance under this section (including altered or replacement guidance) to be laid before Parliament.

(5)In this section, “privileged communications” means—

(a)communications made—

(i)between a professional legal adviser and the adviser's client, and

(ii)in connection with the giving of legal advice to the client with respect to legal obligations, liabilities or rights, and

(b)communications made—

(i)between a professional legal adviser and the adviser's client or between such an adviser or client and another person,

(ii)in connection with or in contemplation of legal proceedings, and

(iii)for the purposes of such proceedings.

(6)In subsection (5)—

(a)references to the client of a professional legal adviser include references to a person acting on behalf of the client, and

(b)references to a communication include—

(i)a copy or other record of the communication, and

(ii)anything enclosed with or referred to in the communication if made as described in subsection (5)(a)(ii) or in subsection (5)(b)(ii) and (iii).

Fees

134 Fees for services

The Commissioner may require a person other than a data subject or a data protection officer to pay a reasonable fee for a service provided to the person, or at the person's request, which the Commissioner is required or authorised to provide under the data protection legislation.

135 Manifestly unfounded or excessive requests by data subjects etc

(1)Where a request to the Commissioner from a data subject or a data protection officer is manifestly unfounded or excessive, the Commissioner may—

(a)charge a reasonable fee for dealing with the request, or

(b)refuse to act on the request.

(2)An example of a request that may be excessive is one that merely repeats the substance of previous requests.

(3)In any proceedings where there is an issue as to whether a request described in subsection (1) is manifestly unfounded or excessive, it is for the Commissioner to show that it is.

(4)Subsections (1) and (3) apply only in cases in which the Commissioner does not already have such powers and obligations under Article 57(4) of the GDPR.

136 Guidance about fees

(1)The Commissioner must produce and publish guidance about the fees the Commissioner proposes to charge in accordance with—

(a)section 134 or 135, or

(b)Article 57(4) of the GDPR.

(2)Before publishing the guidance, the Commissioner must consult the Secretary of State.

Charges

137 Charges payable to the Commissioner by controllers

(1)The Secretary of State may by regulations require controllers to pay charges of an amount specified in the regulations to the Commissioner.

(2)Regulations under subsection (1) may require a controller to pay a charge regardless of whether the Commissioner has provided, or proposes to provide, a service to the controller.

(3)Regulations under subsection (1) may—

(a)make provision about the time or times at which, or period or periods within which, a charge must be paid;

(b)make provision for cases in which a discounted charge is payable;

(c)make provision for cases in which no charge is payable;

(d)make provision for cases in which a charge which has been paid is to be refunded.

(4)In making regulations under subsection (1), the Secretary of State must have regard to the desirability of securing that the charges payable to the Commissioner under such regulations are sufficient to offset—

(a)expenses incurred by the Commissioner in discharging the Commissioner's functions—

(i)under the data protection legislation,

(ii)under the Data Protection Act 1998,

(iii)under or by virtue of sections 108 and 109 of the Digital Economy Act 2017, and

(iv)under or by virtue of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426),

(b)any expenses of the Secretary of State in respect of the Commissioner so far as attributable to those functions,

(c)to the extent that the Secretary of State considers appropriate, any deficit previously incurred (whether before or after the passing of this Act) in respect of the expenses mentioned in paragraph (a), and

(d)to the extent that the Secretary of State considers appropriate, expenses incurred by the Secretary of State in respect of the inclusion of any officers or staff of the Commissioner in any scheme under section 1 of the Superannuation Act 1972 or section 1 of the Public Service Pensions Act 2013.

(5)The Secretary of State may from time to time require the Commissioner to provide information about the expenses referred to in subsection (4)(a).

(6)The Secretary of State may by regulations make provision—

(a)requiring a controller to provide information to the Commissioner, or

(b)enabling the Commissioner to require a controller to provide information to the Commissioner,

for either or both of the purposes mentioned in subsection (7).

(7)Those purposes are—

(a)determining whether a charge is payable by the controller under regulations under subsection (1);

(b)determining the amount of a charge payable by the controller.

(8)The provision that may be made under subsection (6)(a) includes provision requiring a controller to notify the Commissioner of a change in the controller's circumstances of a kind specified in the regulations.

138 Regulations under section 137: supplementary

(1)Before making regulations under section 137(1) or (6), the Secretary of State must consult such representatives of persons likely to be affected by the regulations as the Secretary of State thinks appropriate (and see also section 182).

(2)The Commissioner—

(a)must keep under review the working of regulations under section 137(1) or (6), and

(b)may from time to time submit proposals to the Secretary of State for amendments to be made to the regulations.

(3)The Secretary of State must review the working of regulations under section 137(1) or (6)—

(a)at the end of the period of 5 years beginning with the making of the first set of regulations under section 108 of the Digital Economy Act 2017, and

(b)at the end of each subsequent 5 year period.

(4)Regulations under section 137(1) are subject to the negative resolution procedure if—

(a)they only make provision increasing a charge for which provision is made by previous regulations under section 137(1) or section 108(1) of the Digital Economy Act 2017, and

(b)they do so to take account of an increase in the retail prices index since the previous regulations were made.

(5)Subject to subsection (4), regulations under section 137(1) or (6) are subject to the affirmative resolution procedure.

(6)In subsection (4), “the retail prices index” means—

(a)the general index of retail prices (for all items) published by the Statistics Board, or

(b)where that index is not published for a month, any substitute index or figures published by the Board.

(7)Regulations under section 137(1) or (6) may not apply to—

(a)Her Majesty in her private capacity,

(b)Her Majesty in right of the Duchy of Lancaster, or

(c)the Duke of Cornwall.

Reports etc

139 Reporting to Parliament

(1)The Commissioner must—

(a)produce a general report on the carrying out of the Commissioner's functions annually,

(b)arrange for it to be laid before Parliament, and

(c)publish it.

(2)The report must include the annual report required under Article 59 of the GDPR.

(3)The Commissioner may produce other reports relating to the carrying out of the Commissioner's functions and arrange for them to be laid before Parliament.

140 Publication by the Commissioner

A duty under this Act for the Commissioner to publish a document is a duty for the Commissioner to publish it, or to arrange for it to be published, in such form and manner as the Commissioner considers appropriate.

141 Notices from the Commissioner

(1)This section applies in relation to a notice authorised or required by this Act to be given to a person by the Commissioner.

(2)The notice may be given to an individual—

(a)by delivering it to the individual,

(b)by sending it to the individual by post addressed to the individual at his or her usual or last-known place of residence or business, or

(c)by leaving it for the individual at that place.

(3)The notice may be given to a body corporate or unincorporate—

(a)by sending it by post to the proper officer of the body at its principal office, or

(b)by addressing it to the proper officer of the body and leaving it at that office.

(4)The notice may be given to a partnership in Scotland—

(a)by sending it by post to the principal office of the partnership, or

(b)by addressing it to that partnership and leaving it at that office.

(5)The notice may be given to the person by other means, including by electronic means, with the person's consent.

(6)In this section—

“principal office”, in relation to a registered company, means its registered office;

“proper officer”, in relation to any body, means the secretary or other executive officer charged with the conduct of its general affairs;

“registered company” means a company registered under the enactments relating to companies for the time being in force in the United Kingdom.

(7)This section is without prejudice to any other lawful method of giving a notice.

PART 6 Enforcement

Information notices

142 Information notices

(1)The Commissioner may, by written notice (an “information notice”)—

(a)require a controller or processor to provide the Commissioner with information that the Commissioner reasonably requires for the purposes of carrying out the Commissioner's functions under the data protection legislation, or

(b)require any person to provide the Commissioner with information that the Commissioner reasonably requires for the purposes of—

(i)investigating a suspected failure of a type described in section 149(2) or a suspected offence under this Act, or

(ii)determining whether the processing of personal data is carried out by an individual in the course of a purely personal or household activity.

(2)An information notice must state—

(a)whether it is given under subsection (1)(a), (b)(i) or (b)(ii), and

(b)why the Commissioner requires the information.

(3)An information notice—

(a)may specify or describe particular information or a category of information;

(b)may specify the form in which the information must be provided;

(c)may specify the time at which, or the period within which, the information must be provided;

(d)may specify the place where the information must be provided;

(but see the restrictions in subsections (5) to (7)).

(4)An information notice must provide information about—

(a)the consequences of failure to comply with it, and

(b)the rights under sections 162 and 164 (appeals etc).

(5)An information notice may not require a person to provide information before the end of the period within which an appeal can be brought against the notice.

(6)If an appeal is brought against an information notice, the information need not be provided pending the determination or withdrawal of the appeal.

(7)If an information notice—

(a)states that, in the Commissioner's opinion, the information is required urgently, and

(b)gives the Commissioner's reasons for reaching that opinion,

subsections (5) and (6) do not apply but the notice must not require the information to be provided before the end of the period of 24 hours beginning when the notice is given.

(8)The Commissioner may cancel an information notice by written notice to the person to whom it was given.

(9)In subsection (1), in relation to a person who is a controller or processor for the purposes of the GDPR, the reference to a controller or processor includes a representative of a controller or processor designated under Article 27 of the GDPR (representatives of controllers or processors not established in the European Union).

(10)Section 3(14)(c) does not apply to the reference to the processing of personal data in subsection (1)(b).

143 Information notices: restrictions

(1)The Commissioner may not give an information notice with respect to the processing of personal data for the special purposes unless—

(a)a determination under section 174 with respect to the data or the processing has taken effect, or

(b)the Commissioner—

(i)has reasonable grounds for suspecting that such a determination could be made, and

(ii)the information is required for the purposes of making such a determination.

(2)An information notice does not require a person to give the Commissioner information to the extent that requiring the person to do so would involve an infringement of the privileges of either House of Parliament.

(3)An information notice does not require a person to give the Commissioner information in respect of a communication which is made—

(a)between a professional legal adviser and the adviser's client, and

(b)in connection with the giving of legal advice to the client with respect to obligations, liabilities or rights under the data protection legislation.

(4)An information notice does not require a person to give the Commissioner information in respect of a communication which is made—

(a)between a professional legal adviser and the adviser's client or between such an adviser or client and another person,

(b)in connection with or in contemplation of proceedings under or arising out of the data protection legislation, and

(c)for the purposes of such proceedings.

(5)In subsections (3) and (4), references to the client of a professional legal adviser include references to a person acting on behalf of the client.

(6)An information notice does not require a person to provide the Commissioner with information if doing so would, by revealing evidence of the commission of an offence expose the person to proceedings for that offence.

(7)The reference to an offence in subsection (6) does not include an offence under—

(a)this Act;

(b)section 5 of the Perjury Act 1911 (false statements made otherwise than on oath);

(c)section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995 (false statements made otherwise than on oath);

(d)Article 10 of the Perjury (Northern Ireland) Order 1979 (S.I. 1979/1714 (N.I. 19)) (false statutory declarations and other false unsworn statements).

(8)An oral or written statement provided by a person in response to an information notice may not be used in evidence against that person on a prosecution for an offence under this Act (other than an offence under section 144) unless in the proceedings—

(a)in giving evidence the person provides information inconsistent with the statement, and

(b)evidence relating to the statement is adduced, or a question relating to it is asked, by that person or on that person's behalf.

(9)In subsection (6), in relation to an information notice given to a representative of a controller or processor designated under Article 27 of the GDPR, the reference to the person providing the information being exposed to proceedings for an offence includes a reference to the controller or processor being exposed to such proceedings.

144 False statements made in response to information notices

It is an offence for a person, in response to an information notice—

(a)to make a statement which the person knows to be false in a material respect, or

(b)recklessly to make a statement which is false in a material respect.

145 Information orders

(1)This section applies if, on an application by the Commissioner, a court is satisfied that a person has failed to comply with a requirement of an information notice.

(2)The court may make an order requiring the person to provide to the Commissioner some or all of the following—

(a)information referred to in the information notice;

(b)other information which the court is satisfied the Commissioner requires, having regard to the statement included in the notice in accordance with section 142(2)(b).

(3)The order—

(a)may specify the form in which the information must be provided,

(b)must specify the time at which, or the period within which, the information must be provided, and

(c)may specify the place where the information must be provided.

Assessment notices

146 Assessment notices

(1)The Commissioner may by written notice (an “assessment notice”) require a controller or processor to permit the Commissioner to carry out an assessment of whether the controller or processor has complied or is complying with the data protection legislation.

(2)An assessment notice may require the controller or processor to do any of the following—

(a)permit the Commissioner to enter specified premises;

(b)direct the Commissioner to documents on the premises that are of a specified description;

(c)assist the Commissioner to view information of a specified description that is capable of being viewed using equipment on the premises;

(d)comply with a request from the Commissioner for a copy (in such form as may be requested) of—

(i)the documents to which the Commissioner is directed;

(ii)the information which the Commissioner is assisted to view;

(e)direct the Commissioner to equipment or other material on the premises which is of a specified description;

(f)permit the Commissioner to inspect or examine the documents, information, equipment or material to which the Commissioner is directed or which the Commissioner is assisted to view;

(g)provide the Commissioner with an explanation of such documents, information, equipment or material;

(h)permit the Commissioner to observe the processing of personal data that takes place on the premises;

(i)make available for interview by the Commissioner a specified number of people of a specified description who process personal data on behalf of the controller, not exceeding the number who are willing to be interviewed.

(3)In subsection (2), references to the Commissioner include references to the Commissioner's officers and staff.

(4)An assessment notice must, in relation to each requirement imposed by the notice, specify the time or times at which, or period or periods within which, the requirement must be complied with (but see the restrictions in subsections (6) to (9)).

(5)An assessment notice must provide information about—

(a)the consequences of failure to comply with it, and

(b)the rights under sections 162 and 164 (appeals etc).

(6)An assessment notice may not require a person to do anything before the end of the period within which an appeal can be brought against the notice.

(7)If an appeal is brought against an assessment notice, the controller or processor need not comply with a requirement in the notice pending the determination or withdrawal of the appeal.

(8)If an assessment notice—

(a)states that, in the Commissioner's opinion, it is necessary for the controller or processor to comply with a requirement in the notice urgently,

(b)gives the Commissioner's reasons for reaching that opinion, and

(c)does not meet the conditions in subsection (9)(a) to (d),

subsections (6) and (7) do not apply but the notice must not require the controller or processor to comply with the requirement before the end of the period of 7 days beginning when the notice is given.

(9)If an assessment notice—

(a)states that, in the Commissioner's opinion, there are reasonable grounds for suspecting that a controller or processor has failed or is failing as described in section 149(2) or that an offence under this Act has been or is being committed,

(b)indicates the nature of the suspected failure or offence,

(c)does not specify domestic premises,

(d)states that, in the Commissioner's opinion, it is necessary for the controller or processor to comply with a requirement in the notice in less than 7 days, and

(e)gives the Commissioner's reasons for reaching that opinion,

subsections (6) and (7) do not apply.

(10)The Commissioner may cancel an assessment notice by written notice to the controller or processor to whom it was given.

(11)Where the Commissioner gives an assessment notice to a processor, the Commissioner must, so far as reasonably practicable, give a copy of the notice to each controller for whom the processor processes personal data.

(12)In this section—

“domestic premises” means premises, or a part of premises, used as a dwelling;

“specified” means specified in an assessment notice.

147 Assessment notices: restrictions

(1)An assessment notice does not require a person to do something to the extent that requiring the person to do it would involve an infringement of the privileges of either House of Parliament.

(2)An assessment notice does not have effect so far as compliance would result in the disclosure of a communication which is made—

(a)between a professional legal adviser and the adviser's client, and

(b)in connection with the giving of legal advice to the client with respect to obligations, liabilities or rights under the data protection legislation.

(3)An assessment notice does not have effect so far as compliance would result in the disclosure of a communication which is made—

(a)between a professional legal adviser and the adviser's client or between such an adviser or client and another person,

(b)in connection with or in contemplation of proceedings under or arising out of the data protection legislation, and

(c)for the purposes of such proceedings.

(4)In subsections (2) and (3)—

(a)references to the client of a professional legal adviser include references to a person acting on behalf of such a client, and

(b)references to a communication include—

(i)a copy or other record of the communication, and

(ii)anything enclosed with or referred to in the communication if made as described in subsection (2)(b) or in subsection (3)(b) and (c).

(5)The Commissioner may not give a controller or processor an assessment notice with respect to the processing of personal data for the special purposes.

(6)The Commissioner may not give an assessment notice to—

(a)a body specified in section 23(3) of the Freedom of Information Act 2000 (bodies dealing with security matters), or

(b)the Office for Standards in Education, Children's Services and Skills in so far as it is a controller or processor in respect of information processed for the purposes of functions exercisable by Her Majesty's Chief Inspector of Education, Children's Services and Skills by virtue of section 5(1)(a) of the Care Standards Act 2000.

Information notices and assessment notices: destruction of documents etc

148 Destroying or falsifying information and documents etc

(1)This section applies where a person—

(a)has been given an information notice requiring the person to provide the Commissioner with information, or

(b)has been given an assessment notice requiring the person to direct the Commissioner to a document, equipment or other material or to assist the Commissioner to view information.

(2)It is an offence for the person—

(a)to destroy or otherwise dispose of, conceal, block or (where relevant) falsify all or part of the information, document, equipment or material, or

(b)to cause or permit the destruction, disposal, concealment, blocking or (where relevant) falsification of all or part of the information, document, equipment or material,

with the intention of preventing the Commissioner from viewing, or being provided with or directed to, all or part of the information, document, equipment or material.

(3)It is a defence for a person charged with an offence under subsection (2) to prove that the destruction, disposal, concealment, blocking or falsification would have occurred in the absence of the person being given the notice.

Enforcement notices

149 Enforcement notices

(1)Where the Commissioner is satisfied that a person has failed, or is failing, as described in subsection (2), (3), (4) or (5), the Commissioner may give the person a written notice (an “enforcement notice”) which requires the person—

(a)to take steps specified in the notice, or

(b)to refrain from taking steps specified in the notice,

or both (and see also sections 150 and 151).

(2)The first type of failure is where a controller or processor has failed, or is failing, to comply with any of the following—

(a)a provision of Chapter II of the GDPR or Chapter 2 of Part 3 or Chapter 2 of Part 4 of this Act (principles of processing);

(b)a provision of Articles 12 to 22 of the GDPR or Part 3 or 4 of this Act conferring rights on a data subject;

(c)a provision of Articles 25 to 39 of the GDPR or section 64 or 65 of this Act (obligations of controllers and processors);

(d)a requirement to communicate a personal data breach to the Commissioner or a data subject under section 67, 68 or 108 of this Act;

(e)the principles for transfers of personal data to third countries, non-Convention countries and international organisations in Articles 44 to 49 of the GDPR or in sections 73 to 78 or 109 of this Act.

(3)The second type of failure is where a monitoring body has failed, or is failing, to comply with an obligation under Article 41 of the GDPR (monitoring of approved codes of conduct).

(4)The third type of failure is where a person who is a certification provider—

(a)does not meet the requirements for accreditation,

(b)has failed, or is failing, to comply with an obligation under Article 42 or 43 of the GDPR (certification of controllers and processors), or

(c)has failed, or is failing, to comply with any other provision of the GDPR (whether in the person's capacity as a certification provider or otherwise).

(5)The fourth type of failure is where a controller has failed, or is failing, to comply with regulations under section 137.

(6)An enforcement notice given in reliance on subsection (2), (3) or (5) may only impose requirements which the Commissioner considers appropriate for the purpose of remedying the failure.

(7)An enforcement notice given in reliance on subsection (4) may only impose requirements which the Commissioner considers appropriate having regard to the failure (whether or not for the purpose of remedying the failure).

(8)The Secretary of State may by regulations confer power on the Commissioner to give an enforcement notice in respect of other failures to comply with the data protection legislation.

(9)Regulations under this section—

(a)may make provision about the giving of an enforcement notice in respect of the failure, including by amending this section and sections 150 to 152,

(b)may make provision about the giving of an information notice, an assessment notice or a penalty notice, or about powers of entry and inspection, in connection with the failure, including by amending sections 142, 143, 146, 147 and 155 to 157 and Schedules 15 and 16, and

(c)are subject to the affirmative resolution procedure.

150 Enforcement notices: supplementary

(1)An enforcement notice must—

(a)state what the person has failed or is failing to do, and

(b)give the Commissioner's reasons for reaching that opinion.

(2)In deciding whether to give an enforcement notice in reliance on section 149(2), the Commissioner must consider whether the failure has caused or is likely to cause any person damage or distress.

(3)In relation to an enforcement notice given in reliance on section 149(2), the Commissioner's power under section 149(1)(b) to require a person to refrain from taking specified steps includes power—

(a)to impose a ban relating to all processing of personal data, or

(b)to impose a ban relating only to a specified description of processing of personal data, including by specifying one or more of the following—

(i)a description of personal data;

(ii)the purpose or manner of the processing;

(iii)the time when the processing takes place.

(4)An enforcement notice may specify the time or times at which, or period or periods within which, a requirement imposed by the notice must be complied with (but see the restrictions in subsections (6) to (8)).

(5)An enforcement notice must provide information about—

(a)the consequences of failure to comply with it, and

(b)the rights under sections 162 and 164 (appeals etc).

(6)An enforcement notice must not specify a time for compliance with a requirement in the notice which falls before the end of the period within which an appeal can be brought against the notice.

(7)If an appeal is brought against an enforcement notice, a requirement in the notice need not be complied with pending the determination or withdrawal of the appeal.

(8)If an enforcement notice—

(a)states that, in the Commissioner's opinion, it is necessary for a requirement to be complied with urgently, and

(b)gives the Commissioner's reasons for reaching that opinion,

subsections (6) and (7) do not apply but the notice must not require the requirement to be complied with before the end of the period of 24 hours beginning when the notice is given.

(9)In this section, “specified” means specified in an enforcement notice.

151 Enforcement notices: rectification and erasure of personal data etc

(1)Subsections (2) and (3) apply where an enforcement notice is given in respect of a failure by a controller or processor—

(a)to comply with a data protection principle relating to accuracy, or

(b)to comply with a data subject's request to exercise rights under Article 16, 17 or 18 of the GDPR (right to rectification, erasure or restriction on processing) or section 46, 47 or 100 of this Act.

(2)If the enforcement notice requires the controller or processor to rectify or erase inaccurate personal data, it may also require the controller or processor to rectify or erase any other data which—

(a)is held by the controller or processor, and

(b)contains an expression of opinion which appears to the Commissioner to be based on the inaccurate personal data.

(3)Where a controller or processor has accurately recorded personal data provided by the data subject or a third party but the data is inaccurate, the enforcement notice may require the controller or processor—

(a)to take steps specified in the notice to ensure the accuracy of the data,

(b)if relevant, to secure that the data indicates the data subject's view that the data is inaccurate, and

(c)to supplement the data with a statement of the true facts relating to the matters dealt with by the data that is approved by the Commissioner,

(as well as imposing requirements under subsection (2)).

(4)When deciding what steps it is reasonable to specify under subsection (3)(a), the Commissioner must have regard to the purpose for which the data was obtained and further processed.

(5)Subsections (6) and (7) apply where—

(a)an enforcement notice requires a controller or processor to rectify or erase personal data, or

(b)the Commissioner is satisfied that the processing of personal data which has been rectified or erased by the controller or processor involved a failure described in subsection (1).

(6)An enforcement notice may, if reasonably practicable, require the controller or processor to notify third parties to whom the data has been disclosed of the rectification or erasure.

(7)In determining whether it is reasonably practicable to require such notification, the Commissioner must have regard, in particular, to the number of people who would have to be notified.

(8)In this section, “data protection principle relating to accuracy” means the principle in—

(a)Article 5(1)(d) of the GDPR,

(b)section 38(1) of this Act, or

(c)section 89 of this Act.

152 Enforcement notices: restrictions

(1)The Commissioner may not give a controller or processor an enforcement notice in reliance on section 149(2) with respect to the processing of personal data for the special purposes unless—

(a)a determination under section 174 with respect to the data or the processing has taken effect, and

(b)a court has granted leave for the notice to be given.

(2)A court must not grant leave for the purposes of subsection (1)(b) unless it is satisfied that—

(a)the Commissioner has reason to suspect a failure described in section 149(2) which is of substantial public importance, and

(b)the controller or processor has been given notice of the application for leave in accordance with rules of court or the case is urgent.

(3)An enforcement notice does not require a person to do something to the extent that requiring the person to do it would involve an infringement of the privileges of either House of Parliament.

(4)In the case of a joint controller in respect of the processing of personal data to which Part 3 or 4 applies whose responsibilities for compliance with that Part are determined in an arrangement under section 58 or 104, the Commissioner may only give the controller an enforcement notice in reliance on section 149(2) if the controller is responsible for compliance with the provision, requirement or principle in question.

153 Enforcement notices: cancellation and variation

(1)The Commissioner may cancel or vary an enforcement notice by giving written notice to the person to whom it was given.

(2)A person to whom an enforcement notice is given may apply in writing to the Commissioner for the cancellation or variation of the notice.

(3)An application under subsection (2) may be made only—

(a)after the end of the period within which an appeal can be brought against the notice, and

(b)on the ground that, by reason of a change of circumstances, one or more of the provisions of that notice need not be complied with in order to remedy the failure identified in the notice.

Powers of entry and inspection

154 Powers of entry and inspection

Schedule 15 makes provision about powers of entry and inspection.

Penalties

155 Penalty notices

(1)If the Commissioner is satisfied that a person—

(a)has failed or is failing as described in section 149(2), (3), (4) or (5), or

(b)has failed to comply with an information notice, an assessment notice or an enforcement notice,

the Commissioner may, by written notice (a “penalty notice”), require the person to pay to the Commissioner an amount in sterling specified in the notice.

(2)Subject to subsection (4), when deciding whether to give a penalty notice to a person and determining the amount of the penalty, the Commissioner must have regard to the following, so far as relevant—

(a)to the extent that the notice concerns a matter to which the GDPR applies, the matters listed in Article 83(1) and (2) of the GDPR;

(b)to the extent that the notice concerns another matter, the matters listed in subsection (3).

(3)Those matters are—

(a)the nature, gravity and duration of the failure;

(b)the intentional or negligent character of the failure;

(c)any action taken by the controller or processor to mitigate the damage or distress suffered by data subjects;

(d)the degree of responsibility of the controller or processor, taking into account technical and organisational measures implemented by the controller or processor in accordance with section 57, 66, 103 or 107;

(e)any relevant previous failures by the controller or processor;

(f)the degree of co-operation with the Commissioner, in order to remedy the failure and mitigate the possible adverse effects of the failure;

(g)the categories of personal data affected by the failure;

(h)the manner in which the infringement became known to the Commissioner, including whether, and if so to what extent, the controller or processor notified the Commissioner of the failure;

(i)the extent to which the controller or processor has complied with previous enforcement notices or penalty notices;

(j)adherence to approved codes of conduct or certification mechanisms;

(k)any other aggravating or mitigating factor applicable to the case, including financial benefits gained, or losses avoided, as a result of the failure (whether directly or indirectly);

(l)whether the penalty would be effective, proportionate and dissuasive.

(4)Subsections (2) and (3) do not apply in the case of a decision or determination relating to a failure described in section 149(5).

(5)Schedule 16 makes further provision about penalty notices, including provision requiring the Commissioner to give a notice of intent to impose a penalty and provision about payment, variation, cancellation and enforcement.

(6)The Secretary of State may by regulations—

(a)confer power on the Commissioner to give a penalty notice in respect of other failures to comply with the data protection legislation, and

(b)provide for the maximum penalty that may be imposed in relation to such failures to be either the standard maximum amount or the higher maximum amount.

(7)Regulations under this section—

(a)may make provision about the giving of penalty notices in respect of the failure,

(b)may amend this section and sections 156 to 158, and

(c)are subject to the affirmative resolution procedure.

(8)In this section, “higher maximum amount” and “standard maximum amount” have the same meaning as in section 157.

156 Penalty notices: restrictions

(1)The Commissioner may not give a controller or processor a penalty notice in reliance on section 149(2) with respect to the processing of personal data for the special purposes unless—

(a)a determination under section 174 with respect to the data or the processing has taken effect, and

(b)a court has granted leave for the notice to be given.

(2)A court must not grant leave for the purposes of subsection (1)(b) unless it is satisfied that—

(a)the Commissioner has reason to suspect a failure described in section 149(2) which is of substantial public importance, and

(b)the controller or processor has been given notice of the application for leave in accordance with rules of court or the case is urgent.

(3)The Commissioner may not give a controller or processor a penalty notice with respect to the processing of personal data where the purposes and manner of the processing are determined by or on behalf of either House of Parliament.

(4)The Commissioner may not give a penalty notice to—

(a)the Crown Estate Commissioners, or

(b)a person who is a controller by virtue of section 209(4) (controller for the Royal Household etc).

(5)In the case of a joint controller in respect of the processing of personal data to which Part 3 or 4 applies whose responsibilities for compliance with that Part are determined in an arrangement under section 58 or 104, the Commissioner may only give the controller a penalty notice in reliance on section 149(2) if the controller is responsible for compliance with the provision, requirement or principle in question.

157 Maximum amount of penalty

(1)In relation to an infringement of a provision of the GDPR, the maximum amount of the penalty that may be imposed by a penalty notice is—

(a)the amount specified in Article 83 of the GDPR, or

(b)if an amount is not specified there, the standard maximum amount.

(2)In relation to an infringement of a provision of Part 3 of this Act, the maximum amount of the penalty that may be imposed by a penalty notice is—

(a)in relation to a failure to comply with section 35, 36, 37, 38(1), 39(1), 40, 44, 45, 46, 47, 48, 49, 52, 53, 73, 74, 75, 76, 77 or 78, the higher maximum amount, and

(b)otherwise, the standard maximum amount.

(3)In relation to an infringement of a provision of Part 4 of this Act, the maximum amount of the penalty that may be imposed by a penalty notice is—

(a)in relation to a failure to comply with section 86, 87, 88, 89, 90, 91, 93, 94, 100 or 109, the higher maximum amount, and

(b)otherwise, the standard maximum amount.

(4)In relation to a failure to comply with an information notice, an assessment notice or an enforcement notice, the maximum amount of the penalty that may be imposed by a penalty notice is the higher maximum amount.

(5)The “higher maximum amount” is—

(a)in the case of an undertaking, 20 million Euros or 4% of the undertaking's total annual worldwide turnover in the preceding financial year, whichever is higher, or

(b)in any other case, 20 million Euros.

(6)The “standard maximum amount” is—

(a)in the case of an undertaking, 10 million Euros or 2% of the undertaking's total annual worldwide turnover in the preceding financial year, whichever is higher, or

(b)in any other case, 10 million Euros.

(7)The maximum amount of a penalty in sterling must be determined by applying the spot rate of exchange set by the Bank of England on the day on which the penalty notice is given.

158 Fixed penalties for non-compliance with charges regulations

(1)The Commissioner must produce and publish a document specifying the amount of the penalty for a failure to comply with regulations made under section 137.

(2)The Commissioner may specify different amounts for different types of failure.

(3)The maximum amount that may be specified is 150% of the highest charge payable by a controller in respect of a financial year in accordance with the regulations, disregarding any discount available under the regulations.

(4)The Commissioner—

(a)may alter or replace the document, and

(b)must publish any altered or replacement document.

(5)Before publishing a document under this section (including any altered or replacement document), the Commissioner must consult—

(a)the Secretary of State, and

(b)such other persons as the Commissioner considers appropriate.

(6)The Commissioner must arrange for a document published under this section (including any altered or replacement document) to be laid before Parliament.

159 Amount of penalties: supplementary

(1)For the purposes of Article 83 of the GDPR and section 157, the Secretary of State may by regulations—

(a)provide that a person of a description specified in the regulations is or is not an undertaking, and

(b)make provision about how an undertaking's turnover is to be determined.

(2)For the purposes of Article 83 of the GDPR, section 157 and section 158, the Secretary of State may by regulations provide that a period is or is not a financial year.

(3)Regulations under this section are subject to the affirmative resolution procedure.

Guidance

160 Guidance about regulatory action

(1)The Commissioner must produce and publish guidance about how the Commissioner proposes to exercise the Commissioner's functions in connection with—

(a)information notices,

(b)assessment notices,

(c)enforcement notices, and

(d)penalty notices.

(2)The Commissioner may produce and publish guidance about how the Commissioner proposes to exercise the Commissioner's other functions under this Part.

(3)In relation to information notices, the guidance must include—

(a)provision specifying factors to be considered in determining the time at which, or the period within which, information is to be required to be provided;

(b)provision about the circumstances in which the Commissioner would consider it appropriate to give an information notice to a person in reliance on section 142(7) (urgent cases);

(c)provision about how the Commissioner will determine how to proceed if a person does not comply with an information notice.

(4)In relation to assessment notices, the guidance must include—

(a)provision specifying factors to be considered in determining whether to give an assessment notice to a person;

(b)provision about the circumstances in which the Commissioner would consider it appropriate to give an assessment notice in reliance on section 146(8) or (9) (urgent cases);

(c)provision specifying descriptions of documents or information that—

(i)are not to be examined or inspected in accordance with an assessment notice, or

(ii)are to be so examined or inspected only by a person of a description specified in the guidance;

(d)provision about the nature of inspections and examinations carried out in accordance with an assessment notice;

(e)provision about the nature of interviews carried out in accordance with an assessment notice;

(f)provision about the preparation, issuing and publication by the Commissioner of assessment reports in respect of controllers and processors that have been given assessment notices;

(g)provision about how the Commissioner will determine how to proceed if a person does not comply with an assessment notice.

(5)The guidance produced in accordance with subsection (4)(c) must include provisions that relate to—

(a)documents and information concerning an individual's physical or mental health;

(b)documents and information concerning the provision of social care for an individual.

(6)In relation to enforcement notices, the guidance must include—

(a)provision specifying factors to be considered in determining whether to give an enforcement notice to a person;

(b)provision about the circumstances in which the Commissioner would consider it appropriate to give an enforcement notice to a person in reliance on section 150(8) (urgent cases);

(c)provision about how the Commissioner will determine how to proceed if a person does not comply with an enforcement notice.

(7)In relation to penalty notices, the guidance must include—

(a)provision about the circumstances in which the Commissioner would consider it appropriate to issue a penalty notice;

(b)provision about the circumstances in which the Commissioner would consider it appropriate to allow a person to make oral representations about the Commissioner's intention to give the person a penalty notice;

(c)provision explaining how the Commissioner will determine the amount of penalties;

(d)provision about how the Commissioner will determine how to proceed if a person does not comply with a penalty notice.

(8)The Commissioner—

(a)may alter or replace guidance produced under this section, and

(b)must publish any altered or replacement guidance.

(9)Before producing guidance under this section (including any altered or replacement guidance), the Commissioner must consult—

(a)the Secretary of State, and

(b)such other persons as the Commissioner considers appropriate.

(10)Section 161 applies in relation to the first guidance under subsection (1).

(11)The Commissioner must arrange for other guidance under this section (including any altered or replacement guidance) to be laid before Parliament.

(12)In this section, “social care” has the same meaning as in Part 1 of the Health and Social Care Act 2008 (see section 9(3) of that Act).

161 Approval of first guidance about regulatory action

(1)When the first guidance is produced under section 160(1)—

(a)the Commissioner must submit the final version to the Secretary of State, and

(b)the Secretary of State must lay the guidance before Parliament.

(2)If, within the 40-day period, either House of Parliament resolves not to approve the guidance—

(a)the Commissioner must not issue the guidance, and

(b)the Commissioner must produce another version of the guidance (and this section applies to that version).

(3)If, within the 40-day period, no such resolution is made—

(a)the Commissioner must issue the guidance, and

(b)the guidance comes into force at the end of the period of 21 days beginning with the day on which it is issued.

(4)Nothing in subsection (2)(a) prevents another version of the guidance being laid before Parliament.

(5)In this section, “the 40-day period” means—

(a)if the guidance is laid before both Houses of Parliament on the same day, the period of 40 days beginning with that day, or

(b)if the guidance is laid before the Houses of Parliament on different days, the period of 40 days beginning with the later of those days.

(6)In calculating the 40-day period, no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses of Parliament are adjourned for more than 4 days.

Appeals etc

162 Rights of appeal

(1)A person who is given any of the following notices may appeal to the Tribunal—

(a)an information notice;

(b)an assessment notice;

(c)an enforcement notice;

(d)a penalty notice;

(e)a penalty variation notice.

(2)A person who is given an enforcement notice may appeal to the Tribunal against the refusal of an application under section 153 for the cancellation or variation of the notice.

(3)A person who is given a penalty notice or a penalty variation notice may appeal to the Tribunal against the amount of the penalty specified in the notice, whether or not the person appeals against the notice.

(4)Where a determination is made under section 174 in respect of the processing of personal data, the controller or processor may appeal to the Tribunal against the determination.

163 Determination of appeals

(1)Subsections (2) to (4) apply where a person appeals to the Tribunal under section 162(1) or (3).

(2)The Tribunal may review any determination of fact on which the notice or decision against which the appeal is brought was based.

(3)If the Tribunal considers—

(a)that the notice or decision against which the appeal is brought is not in accordance with the law, or

(b)to the extent that the notice or decision involved an exercise of discretion by the Commissioner, that the Commissioner ought to have exercised the discretion differently,

the Tribunal must allow the appeal or substitute another notice or decision which the Commissioner could have given or made.

(4)Otherwise, the Tribunal must dismiss the appeal.

(5)On an appeal under section 162(2), if the Tribunal considers that the enforcement notice ought to be cancelled or varied by reason of a change in circumstances, the Tribunal must cancel or vary the notice.

(6)On an appeal under section 162(4), the Tribunal may cancel the Commissioner's determination.

164 Applications in respect of urgent notices

(1)This section applies where an information notice, an assessment notice or an enforcement notice given to a person contains an urgency statement.

(2)The person may apply to the court for either or both of the following—

(a)the disapplication of the urgency statement in relation to some or all of the requirements of the notice;

(b)a change to the time at which, or the period within which, a requirement of the notice must be complied with.

(3)On an application under subsection (2), the court may do any of the following—

(a)direct that the notice is to have effect as if it did not contain the urgency statement;

(b)direct that the inclusion of the urgency statement is not to have effect in relation to a requirement of the notice;

(c)vary the notice by changing the time at which, or the period within which, a requirement of the notice must be complied with;

(d)vary the notice by making other changes required to give effect to a direction under paragraph (a) or (b) or in consequence of a variation under paragraph (c).

(4)The decision of the court on an application under this section is final.

(5)In this section, “urgency statement” means—

(a)in relation to an information notice, a statement under section 142(7)(a),

(b)in relation to an assessment notice, a statement under section 146(8)(a) or (9)(d), and

(c)in relation to an enforcement notice, a statement under section 150(8)(a).

Complaints

165 Complaints by data subjects

(1)Articles 57(1)(f) and (2) and 77 of the GDPR (data subject's right to lodge a complaint) confer rights on data subjects to complain to the Commissioner if the data subject considers that, in connection with personal data relating to him or her, there is an infringement of the GDPR.

(2)A data subject may make a complaint to the Commissioner if the data subject considers that, in connection with personal data relating to him or her, there is an infringement of Part 3 or 4 of this Act.

(3)The Commissioner must facilitate the making of complaints under subsection (2) by taking steps such as providing a complaint form which can be completed electronically and by other means.

(4)If the Commissioner receives a complaint under subsection (2), the Commissioner must—

(a)take appropriate steps to respond to the complaint,

(b)inform the complainant of the outcome of the complaint,

(c)inform the complainant of the rights under section 166, and

(d)if asked to do so by the complainant, provide the complainant with further information about how to pursue the complaint.

(5)The reference in subsection (4)(a) to taking appropriate steps in response to a complaint includes—

(a)investigating the subject matter of the complaint, to the extent appropriate, and

(b)informing the complainant about progress on the complaint, including about whether further investigation or co-ordination with another supervisory authority or foreign designated authority is necessary.

(6)If the Commissioner receives a complaint relating to the infringement of a data subject's rights under provisions adopted by a member State other than the United Kingdom pursuant to the Law Enforcement Directive, the Commissioner must—

(a)send the complaint to the relevant supervisory authority for the purposes of that Directive,

(b)inform the complainant that the Commissioner has done so, and

(c)if asked to do so by the complainant, provide the complainant with further information about how to pursue the complaint.

(7)In this section—

“foreign designated authority” means an authority designated for the purposes of Article 13 of the Data Protection Convention by a party, other than the United Kingdom, which is bound by that Convention;

“supervisory authority” means a supervisory authority for the purposes of Article 51 of the GDPR or Article 41 of the Law Enforcement Directive in a member State other than the United Kingdom.

166 Orders to progress complaints

(1)This section applies where, after a data subject makes a complaint under section 165 or Article 77 of the GDPR, the Commissioner—

(a)fails to take appropriate steps to respond to the complaint,

(b)fails to provide the complainant with information about progress on the complaint, or of the outcome of the complaint, before the end of the period of 3 months beginning when the Commissioner received the complaint, or

(c)if the Commissioner's consideration of the complaint is not concluded during that period, fails to provide the complainant with such information during a subsequent period of 3 months.

(2)The Tribunal may, on an application by the data subject, make an order requiring the Commissioner—

(a)to take appropriate steps to respond to the complaint, or

(b)to inform the complainant of progress on the complaint, or of the outcome of the complaint, within a period specified in the order.

(3)An order under subsection (2)(a) may require the Commissioner—

(a)to take steps specified in the order;

(b)to conclude an investigation, or take a specified step, within a period specified in the order.

(4)Section 165(5) applies for the purposes of subsections (1)(a) and (2)(a) as it applies for the purposes of section 165(4)(a).

Remedies in the court

167 Compliance orders

(1)This section applies if, on an application by a data subject, a court is satisfied that there has been an infringement of the data subject's rights under the data protection legislation in contravention of that legislation.

(2)A court may make an order for the purposes of securing compliance with the data protection legislation which requires the controller in respect of the processing, or a processor acting on behalf of that controller—

(a)to take steps specified in the order, or

(b)to refrain from taking steps specified in the order.

(3)The order may, in relation to each step, specify the time at which, or the period within which, it must be taken.

(4)In subsection (1)—

(a)the reference to an application by a data subject includes an application made in exercise of the right under Article 79(1) of the GDPR (right to an effective remedy against a controller or processor);

(b)the reference to the data protection legislation does not include Part 4 of this Act or regulations made under that Part.

(5)In relation to a joint controller in respect of the processing of personal data to which Part 3 applies whose responsibilities are determined in an arrangement under section 58, a court may only make an order under this section if the controller is responsible for compliance with the provision of the data protection legislation that is contravened.

168 Compensation for contravention of the GDPR

(1)In Article 82 of the GDPR (right to compensation for material or non-material damage), “non-material damage” includes distress.

(2)Subsection (3) applies where—

(a)in accordance with rules of court, proceedings under Article 82 of the GDPR are brought by a representative body on behalf of a person, and

(b)a court orders the payment of compensation.

(3)The court may make an order providing for the compensation to be paid on behalf of the person to—

(a)the representative body, or

(b)such other person as the court thinks fit.

169 Compensation for contravention of other data protection legislation

(1)A person who suffers damage by reason of a contravention of a requirement of the data protection legislation, other than the GDPR, is entitled to compensation for that damage from the controller or the processor, subject to subsections (2) and (3).

(2)Under subsection (1)—

(a)a controller involved in processing of personal data is liable for any damage caused by the processing, and

(b)a processor involved in processing of personal data is liable for damage caused by the processing only if the processor—

(i)has not complied with an obligation under the data protection legislation specifically directed at processors, or

(ii)has acted outside, or contrary to, the controller's lawful instructions.

(3)A controller or processor is not liable as described in subsection (2) if the controller or processor proves that the controller or processor is not in any way responsible for the event giving rise to the damage.

(4)A joint controller in respect of the processing of personal data to which Part 3 or 4 applies whose responsibilities are determined in an arrangement under section 58 or 104 is only liable as described in subsection (2) if the controller is responsible for compliance with the provision of the data protection legislation that is contravened.

(5)In this section, “damage” includes financial loss and damage not involving financial loss, such as distress.

Offences relating to personal data

170 Unlawful obtaining etc of personal data

(1)It is an offence for a person knowingly or recklessly—

(a)to obtain or disclose personal data without the consent of the controller,

(b)to procure the disclosure of personal data to another person without the consent of the controller, or

(c)after obtaining personal data, to retain it without the consent of the person who was the controller in relation to the personal data when it was obtained.

(2)It is a defence for a person charged with an offence under subsection (1) to prove that the obtaining, disclosing, procuring or retaining—

(a)was necessary for the purposes of preventing or detecting crime,

(b)was required or authorised by an enactment, by a rule of law or by the order of a court or tribunal, or

(c)in the particular circumstances, was justified as being in the public interest.

(3)It is also a defence for a person charged with an offence under subsection (1) to prove that—

(a)the person acted in the reasonable belief that the person had a legal right to do the obtaining, disclosing, procuring or retaining,

(b)the person acted in the reasonable belief that the person would have had the consent of the controller if the controller had known about the obtaining, disclosing, procuring or retaining and the circumstances of it, or

(c)the person acted—

(i)for the special purposes,

(ii)with a view to the publication by a person of any journalistic, academic, artistic or literary material, and

(iii)in the reasonable belief that in the particular circumstances the obtaining, disclosing, procuring or retaining was justified as being in the public interest.

(4)It is an offence for a person to sell personal data if the person obtained the data in circumstances in which an offence under subsection (1) was committed.

(5)It is an offence for a person to offer to sell personal data if the person—

(a)has obtained the data in circumstances in which an offence under subsection (1) was committed, or

(b)subsequently obtains the data in such circumstances.

(6)For the purposes of subsection (5), an advertisement indicating that personal data is or may be for sale is an offer to sell the data.

(7)In this section—

(a)references to the consent of a controller do not include the consent of a person who is a controller by virtue of Article 28(10) of the GDPR or section 59(8) or 105(3) of this Act (processor to be treated as controller in certain circumstances);

(b)where there is more than one controller, such references are references to the consent of one or more of them.

171 Re-identification of de-identified personal data

(1)It is an offence for a person knowingly or recklessly to re-identify information that is de-identified personal data without the consent of the controller responsible for de-identifying the personal data.

(2)For the purposes of this section and section 172—

(a)personal data is “de-identified” if it has been processed in such a manner that it can no longer be attributed, without more, to a specific data subject;

(b)a person “re-identifies” information if the person takes steps which result in the information no longer being de-identified within the meaning of paragraph (a).

(3)It is a defence for a person charged with an offence under subsection (1) to prove that the re-identification—

(a)was necessary for the purposes of preventing or detecting crime,

(b)was required or authorised by an enactment, by a rule of law or by the order of a court or tribunal, or

(c)in the particular circumstances, was justified as being in the public interest.

(4)It is also a defence for a person charged with an offence under subsection (1) to prove that—

(a)the person acted in the reasonable belief that the person—

(i)is the data subject to whom the information relates,

(ii)had the consent of that data subject, or

(iii)would have had such consent if the data subject had known about the re-identification and the circumstances of it,

(b)the person acted in the reasonable belief that the person—

(i)is the controller responsible for de-identifying the personal data,

(ii)had the consent of that controller, or

(iii)would have had such consent if that controller had known about the re-identification and the circumstances of it,

(c)the person acted—

(i)for the special purposes,

(ii)with a view to the publication by a person of any journalistic, academic, artistic or literary material, and

(iii)in the reasonable belief that in the particular circumstances the re-identification was justified as being in the public interest, or

(d)the effectiveness testing conditions were met (see section 172).

(5)It is an offence for a person knowingly or recklessly to process personal data that is information that has been re-identified where the person does so—

(a)without the consent of the controller responsible for de-identifying the personal data, and

(b)in circumstances in which the re-identification was an offence under subsection (1).

(6)It is a defence for a person charged with an offence under subsection (5) to prove that the processing—

(a)was necessary for the purposes of preventing or detecting crime,

(b)was required or authorised by an enactment, by a rule of law or by the order of a court or tribunal, or

(c)in the particular circumstances, was justified as being in the public interest.

(7)It is also a defence for a person charged with an offence under subsection (5) to prove that—

(a)the person acted in the reasonable belief that the processing was lawful,

(b)the person acted in the reasonable belief that the person—

(i)had the consent of the controller responsible for de-identifying the personal data, or

(ii)would have had such consent if that controller had known about the processing and the circumstances of it, or

(c)the person acted—

(i)for the special purposes,

(ii)with a view to the publication by a person of any journalistic, academic, artistic or literary material, and

(iii)in the reasonable belief that in the particular circumstances the processing was justified as being in the public interest.

(8)In this section—

(a)references to the consent of a controller do not include the consent of a person who is a controller by virtue of Article 28(10) of the GDPR or section 59(8) or 105(3) of this Act (processor to be treated as controller in certain circumstances);

(b)where there is more than one controller, such references are references to the consent of one or more of them.

172 Re-identification: effectiveness testing conditions

(1)For the purposes of section 171, in relation to a person who re-identifies information that is de-identified personal data, “the effectiveness testing conditions” means the conditions in subsections (2) and (3).

(2)The first condition is that the person acted—

(a)with a view to testing the effectiveness of the de-identification of personal data,

(b)without intending to cause, or threaten to cause, damage or distress to a person, and

(c)in the reasonable belief that, in the particular circumstances, re-identifying the information was justified as being in the public interest.

(3)The second condition is that the person notified the Commissioner or the controller responsible for de-identifying the personal data about the re-identification—

(a)without undue delay, and

(b)where feasible, not later than 72 hours after becoming aware of it.

(4)Where there is more than one controller responsible for de-identifying personal data, the requirement in subsection (3) is satisfied if one or more of them is notified.

173 Alteration etc of personal data to prevent disclosure to data subject

(1)Subsection (3) applies where—

(a)a request has been made in exercise of a data subject access right, and

(b)the person making the request would have been entitled to receive information in response to that request.

(2)In this section, “data subject access right” means a right under—

(a)Article 15 of the GDPR (right of access by the data subject);

(b)Article 20 of the GDPR (right to data portability);

(c)section 45 of this Act (law enforcement processing: right of access by the data subject);