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JANUARY 2013
Legal Focus
right policies and procedures in place and making sure that staff comply with them. Other aspects of data protection law can be rather more challenging however.
What are the main complexities?
It seems incredible to non-specialists that there is still a degree of uncertainty about some of the DPA’s key definitions. The Act imposes obligations on “data controllers” in respect of “personal data” they are responsible for. However, the definition of personal data as it has been developed in the Courts is not always easy to apply and, deciding whether information is, or is not, personal data sometimes involves a judgement call. This can create real difficulties for organisations, especially given the potential for financial penalties and criminal sanctions where personal data is mishandled. In practice it can also be difficult to establish whether an organisation is a data controller (with responsibility for complying with the DPA), or whether it is a data processor, handling data on behalf of a data controller and answerable only to the data controller for the way in which personal data are handled. Many organisations today are involved in extremely complex data flows which make analysis in the simple terms identified by the DPA very difficult. Other areas of difficulty include the rules for handling subject access requests, rules in relation to the transfer of data to countries outside the EEA and, for public authorities, the interface between DPA and FOIA
Has the amount of data protection-related challenges risen considerably as the growth of technology becomes more and more rapid?
Yes, technological change has created enormous challenges for data protection compliance. Modern organisations collect, use and store vast quantities of data and this data has to be seen not only as an asset but also as a potential liability, especially where the data concerned relates to individuals who could be seriously affected by the loss or inappropriate disclosure of that data. The challenge for all organisations is to put in place robust policies, procedures and systems to minimise mishandling risks and to make sure that these arrangements keep pace with the technology. One of the most important things organisations can do to minimise data protection failings against a background
of rapid technological change is to raise awareness of privacy issues internally so that all personnel with data handling responsibilities can recognise and understand the risks and take appropriate action to minimise these risks. LM
contact details:
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Heledd Lloyd-Jones Senior associate tel: 029 2038 5914
Email: heledd.lloyd-jones@morgan-cole.com
Heledd is a Senior Associate who leads the Information Governance team at Morgan Cole. She specialises in the management of information requests made under the Data Protection Act and the Freedom of Information Act (FOIA). Her team undertakes specialist commercial work in relation to the drafting and application of DP/FOIA/ confidentiality provisions in complex commercial contracts involving public sector bodies. Current work includes advising in relation to unforeseen data losses and in relation to transfers of personal data beyond the European Economic Area. She has acted for clients in relation to a number of FOIA appeal cases before the Information Tribunal and she has advised clients across the UK in relation to numerous Information Commissioner investigations. She is currently involved in a number of information governance projects with private and public sector organisations across the UK.
Heledd is Course Director for Morgan Cole’s accredited data protection training programme which leads to the award of the ISEB Certificate in Data Protection Law.