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Data Protection Act 1998

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The Data Protection Act (DPA) is a United Kingdom Act of Parliament. It defines a legal basis for the handling in the UK of information relating to living people. It is the main piece of legislation that governs protection of personal data in the UK. Although the Act does not mention privacy, in practice it provides a way in which individuals can enforce the control of information about themselves. Most of the Act does not apply to domestic use,[1] for example keeping a personal address book. Organisations in the UK are legally obliged to comply with this Act, subject to some exemptions.

Compliance with the Act is enforced by an independent government authority, the Information Commissioner's Office (ICO). The ICO maintains guidance relating to the Act.[2]

The Act defines eight principles of information-handling practice.

The UK Data Protection Act is a large Act that has a reputation for complexity.[3] While the basic principles are honoured for protecting privacy, interpreting the act is not always simple. Many companies, organisations and individuals seem very unsure of the aims, content and principles of the DPA. Some hide behind the Act and refuse to provide even very basic, publicly available material quoting the Act as a restriction.[4] The act also impacts on the way in which organisations conduct business in terms of who can be contacted for marketing purposes, not only by telephone and direct mail, but also electronically and has led to the development of permission based marketing strategies.

Plain-language summary of key principles

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

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

Also subjects are allowed/have the right to make changes to wrong information

Personal data

The Data Protection Act covers any data which can be used to identify a living person. This includes names, birthday and anniversary dates, addresses, telephone numbers, Fax numbers, e-mail addresses etc. It only applies to that data which is held, or intended to be held, on computers ('equipment operating automatically in response to instructions given for that purpose'), or held in a 'relevant filing system'.

It should be noted that an ordinary paper diary can be classified as a 'relevant filing system' if it can be demonstrated that the diary is used to support commercial activities (eg, a Salesperson's diary).

Subject rights

The Data Protection Act creates rights for those who have their data stored, and responsibilities for those who store or collect personal data.

The person who has their data processed has the right to[5]

  • View the data an organisation holds on them, for a small fee, known as 'subject access'[6]
  • Request that incorrect information be corrected. If the company ignores the request, a court can order the data to be corrected or destroyed, and in some cases compensation can be awarded.[7]
  • Require that data is not used in a way which causes damage or distress.[8]
  • Require that their data is not used for direct marketing.[9]

Data protection principles

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

Conditions relevant to the first principle

  • Personal data should only be processed fairly and lawfully. In order for data to be classed as 'fairly processed', at least one of these six conditions must be applicable to that data.
    1. The data subject (the person whose data is stored) has consented ("given their permission") to the processing;
    2. Processing is necessary for 'the performance of a contract (any processing not directly required to complete a contract would not be "fair");
    3. Processing is required under a legal obligation (other than one stated in the contract);
    4. Processing is necessary to protect the vital interests of the data subject's rights;
    5. Processing is necessary to carry out any public functions;
    6. Processing is necessary in order to pursue the legitimate interests of the "data controller" or "third parties" (unless it could unjustifiably prejudice the interests of the data subject).

Exemptions

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

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

Offences

  • Section 55 - Unlawful obtaining of personal data. This Section makes it an offence for people (Other Parties), such as hackers and impersonators, outside the organisation to obtain unauthorised access to the personal data.[10]
  • Section 56 - This section makes it a criminal offence to require an individual to make a Subject Access Request relating to cautions or convictions for the purposes or recruitment, continued employment, or the provision of services.[11] As of 2007 this section has not yet been enabled.[12] According to the government, this section will not be enabled until the Criminal Records Bureau is providing a Basic Disclosure service.[13] The provision of a Basic Disclosure service is dependent on s.112 of the Police Act 1997 being enacted, which provides for "Criminal Conviction Certificate".[12]

Apparent flaws in the Act

A number of apparent flaws may be found in the text of The Act. The definition of personal data is data which relates to a living individual who can be identified:—

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

This is a subjective definition since whether particular data are personal data depends on which data controller is referred to in the definition. Elsewhere in the act the definition of what constitutes personal data is generally treated as objective.

The effect of this is that personal data encrypted with asymmetric cryptography using a third party's public key is not itself personal data. Such encrypted data alone cannot be used to identify an individual, and the necessary private key is not likely to come into the possession of the data controller. Since the encrypted data are not personal data, none of the provisions of The Act apply.

Another issue arises from the mutually recursive definition of data controller. The data controller is a person who determines the purposes for which and the manner in which any personal data are, or are to be, processed. However the personal data are defined above according to the likely availability of information available to the data controller. This mutual recursion makes the determination of what is and what isn't personal data formally undecidable in some circumstances.

One potential effect of such flaws is that data processing systems can readily be devised which circumvent the spirit but not the letter of The Act.

Personal data which are normally held for under 40 days may be legitimately denied in Subject Access Requests under The Act. This is a consequence of the time limit Data Controllers must meet in making their response. If the data have been deleted by the normal procedures of the business by the time the Data Controller responds to a request, those data cannot be supplied. For data such as CCTV images which are routinely overwritten, it may be impossible for a subject to exercise their data access rights.

See also

References

  1. ^ a b Data Protection Act 1998, Part IV (Exemptions), Section 36, Office of Public Sector Information, accessed September 6 2007
  2. ^ Guidance - The Data Protection Act, Page of Assorted Guidance, Office of the Information Commissioner, accessed October 20 2007
  3. ^ Bainbridge, D: "Introduction to Computer Law - Fifth Edition", page 430. Pearson Education Limited, 2005
  4. ^ Data Protection myths and realities, Information Commissioner's Office, accessed August 30 2008
  5. ^ Your rights,, ICO, accessed September 6 2007
  6. ^ As of 2006, the maximum fee is £10 per item, FAQs, ICO
  7. ^ Correcting information, ICO
  8. ^ Data Protection Act 1998, Part III (Notification by Data Controllers), Section 10, Office of Public Sector Information, accessed September 6 2007
  9. ^ Data Protection Act 1998, Part III (Notification by Data Controllers), Section 11, Office of Public Sector Information, accessed September 6 2007
  10. ^ Data Protection Act 1998, Part VI (Miscellaneous and General), Section 55, Office of Public Sector Information, accessed September 14 2007
  11. ^ Data Protection Act 1998, Part VI (Miscellaneous and General), Section 56, Office of Public Sector Information, accessed September 14 2007
  12. ^ a b British Employment Law website (emplaw.co.uk), Criminal law aspects / vetting of job applicants / position under Police Act 1997
  13. ^ Hansard, 28 Jun 2005 : Column 1451W
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