BACKGROUND

People who have not proceeded with the purchase of a vehicle from dealership are being sent MOT reminders, which is a misuse of data and a breach of the GDPR Act 2018.

This may seem innocuous on the face of it, but in reality this is a clear misuse of personal data that has been held longer than necessary contrary to the principles of the General Data Protection Regulation Act (‘GDPR’) 2018.

You will find these blogs an interesting read;

GDPR ACT 2018

By way of a brief background, the Data Protection Act 1998 (2002 in the Isle of Man) was recently updated and replaced with a harmonised version in May 2018, although the principles remain the same with a new accountability requirement.

The reason for this is because of technological and digital advances that were not relevant or covered in the old legislation, and to harmonise and empower EU citizens with more powers over the use of their personal data. This legislation will remain in place after the UK has left the EU, so it’s here to stay.

The most significant addition is the accountability principle. The GDPR requires organisations to evidence how they have complied with the principles – for example by documenting the decisions taken about a processing activity.

The penalties for non-compliance can range up to €20m or 4% of annual global turnover, whichever is higher, and the Information Commissioner’s Office (‘ICO’) take a variety of factors in to account including the gravity of the offence, damage to the individual, if the infringement has been disclosed to the ICO and other aspects.

It is worth knowing that it is mandatory for any organisation to report any infringements of the GDPR Act 2018 to the ICO, and non-compliance and not reporting the infringement will be taken more seriously with the penalties incurred to reflect that.

Article 5 of the GDPR requires that personal data shall be:

  • processed lawfully, fairly and in a transparent manner in relation to individuals;
  • collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes; further processing for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes shall not be considered to be incompatible with the initial purposes;
  • adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed;
  • accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that personal data that are inaccurate, having regard to the purposes for which they are processed, are erased or rectified without delay;
  • kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed; personal data may be stored for longer periods insofar as the personal data will be processed solely for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes subject to implementation of the appropriate technical and organisational measures required by the GDPR in order to safeguard the rights and freedoms of individuals;
  • processed in a manner that ensures appropriate security of the personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.

IMPLICATIONS

When an organisation is sending MOT reminders for vehicles that have not been purchased, it can be said that the data held is being processed unlawfully as authority has not been granted. Why would an individual grant permission to have their data held and processed when they did not complete a contract?

How do we know that sufficient safeguards are in place if an organisation is so complacent in holding and processing data against the individual’s wishes?

Finally, it is clear that the data is not being processed, lawfully, fairly and in a transparent manner.

There are numerous breaches here and I have a handy template that I am happy to share to hold these organisations to account and give them some work to do.

DATA SUBJECT ACCESS REQUEST

Here is my template and an organisation has 1 month to comply with it otherwise that is another breach;

Dear Sir / Madam,

I am writing to you in your capacity as Data Protection Officer for your Company.  I am a customer of yours, and in light of recent events, I am making this request for access to personal data pursuant to Article 15 of the General Data Protection Regulation.  I am concerned that your company’s information practices may be putting my personal information at undue risk of exposure or in fact has breached its obligation to safeguard my personal information pursuant to <the misuse of my personal data in providing MOT reminders for a vehicle I did not purchase>.

I would like you to be aware at the outset, that I expect a reply to my request within one month as required under Article 12, failing which I will be forwarding my inquiry with a letter of complaint to the Information Commissioner’s Office.

Please advise as to the following:

1. Please confirm to me whether or not my personal data is being processed. If it is, please provide me with the categories of personal data you have about me in your files and databases.

a. In particular, please tell me what you know about me in your information systems, whether or not contained in databases, and including e-mail, documents on your networks, or voice or other media that you may store.

b. Additionally, please advise me in which countries my personal data is stored, or accessible from. In case you make use of cloud services to store or process my data, please include the countries in which the servers are located where my data are or were (in the past 12 months) stored.

c. Please provide me with a copy of, or access to, my personal data that you have or are processing.

2. Please provide me with a detailed account of the specific uses that you have made, are making, or will be making of my personal data.

3. Please provide a list of all third parties with whom you have (or may have) shared my personal data.

a. If you cannot identify with certainty the specific third parties to whom you have disclosed my personal data, please provide a list of third parties to whom you may have disclosed my personal data.

b. Please also identify which jurisdictions that you have identified in 1(b) above that these third parties with whom you have or may have shared my personal data, from which these third parties have stored or can access my personal data. Please also provide insight in the legal grounds for transferring my personal data to these jurisdictions. Where you have done so, or are doing so, on the basis of appropriate safeguards, please provide a copy.

c. Additionally, I would like to know what safeguards have been put in place in relation to these third parties that you have identified in relation to the transfer of my personal data.

4.  Please advise how long you store my personal data, and if retention is based upon the category of personal data, please identify how long each category is retained.

5. If you are additionally collecting personal data about me from any source other than me, please provide me with all information about their source, as referred to in Article 14 of the GDPR.

6.  If you are making automated decisions about me, including profiling, whether or not on the basis of Article 22 of the GDPR, please provide me with information concerning the basis for the logic in making such automated decisions, and the significance and consequences of such processing.

7.  I would like to know whether or not my personal data has been disclosed inadvertently by your company in the past, or as a result of a security or privacy breach.

a. If so, please advise as to the following details of each and any such breach:

i. a general description of what occurred;

ii. the date and time of the breach (or the best possible estimate);

iii. the date and time the breach was discovered;

iv. the source of the breach (either your own organisation, or a third party to whom you have transferred my personal data);

v. details of my personal data that was disclosed;

vi. your company’s assessment of the risk of harm to myself, as a result of the breach;

vii. a description of the measures taken or that will be taken to prevent further unauthorised access to my personal data;

viii. contact information so that I can obtain more information and assistance in relation to such a breach, and

ix. information and advice on what I can do to protect myself against any harms, including identity theft and fraud.

b. If you are not able to state with any certainty whether such an exposure has taken place, through the use of appropriate technologies, please advise what mitigating steps you have taken, such as

i. Encryption of my personal data;

ii. Data minimisation strategies; or,

iii. Anonymisation or pseudonymisation;

iv. Any other means

8.  I would like to know your information policies and standards that you follow in relation to the safeguarding of my personal data, such as whether you adhere to ISO27001 for information security, and more particularly, your practices in relation to the following:

a. Please inform me whether you have backed up my personal data to tape, disk or other media, and where it is stored and how it is secured, including what steps you have taken to protect my personal data from loss or theft, and whether this includes encryption.

b. Please also advise whether you have in place any technology which allows you with reasonable certainty to know whether or not my personal data has been disclosed, including but not limited to the following:

i. Intrusion detection systems;

ii. Firewall technologies;

iii. Access and identity management technologies;

iv. Database audit and/or security tools; or,

v. Behavioural analysis tools, log analysis tools, or audit tools;

9.  In regards to employees and contractors, please advise as to the following:

a. What technologies or business procedures do you have to ensure that individuals within your organisation will be monitored to ensure that they do not deliberately or inadvertently disclose personal data outside your company, through e-mail, web-mail or instant messaging, or otherwise.

b. Have you had any circumstances in which employees or contractors have been dismissed, and/or been charged under criminal laws for accessing my personal data inappropriately, or if you are unable to determine this, of any customers, in the past twelve months.

c. Please advise as to what training and awareness measures you have taken in order to ensure that employees and contractors are accessing and processing my personal data in conformity with the General Data Protection Regulation.

Yours faithfully,

On a final note, you need to send this by recorded delivery to evidence receipt and set the ball rolling.

You can report any breaches to the Information Commissioner’s Office (‘ICO’). This is a watchdog that has teeth and is not afraid to use them.

How have you dealt with any misuse of your data?

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