Global Investigations Review - The law and practice of international investigations

Data Privacy & Transfer in Investigations

Last verified on Tuesday 17th September 2019

United Kingdom

Nigel Parker, Calum Burnett, Hugo Flaux and Amy Blackburn
Allen & Overy LLP
  1. 1.

    What laws and regulations in your jurisdiction regulate the collection and processing of personal data?

  2. The EU General Data Protection Regulation (2016/679) (the GDPR) is directly applicable in this jurisdiction.

    Together with the GDPR, the Data Protection Act 2018 (DPA) forms the data protection regime in the UK. Among other things, the DPA implements derogations and UK specific exemptions, as permitted by the GDPR. Throughout this guide, references to the GDPR shall refer to the GDPR as it applies in the UK.

    The Information Commissioner’s Office (the ICO) is the regulator responsible for enforcing the GDPR and the DPA.

    Given the political uncertainty surrounding Brexit, it is deliberately not addressed in the remainder of this questionnaire. Under the Withdrawal Agreement (which, as at the date of this questionnaire, has not been passed by the UK Parliament), EU law, including the GDPR, would continue to apply during a transition period and data transfers between the UK and EU would be treated no differently to if the UK had not withdrawn from the EU. At the end of that period, transfers would be restricted in the absence of an agreement to the contrary. The Political Declaration envisages the UK being recognised as providing an adequate level of protection.

    The UK government and the UK Information Commissioner’s Office have published extensive guidance on what would happen in the event of a no-deal Brexit. The most significant change is that the UK would be a “third country” for the purposes of the GDPR by virtue of its no longer being a member state of the EU. Therefore, a transfer of personal data from any country in the European Economic Area (EEA) to the UK would require the implementation of safeguards under the GDPR (unless a derogation applies in certain circumstances). Transfers from the UK to the EU would not be restricted.  

  3. 2.

    What other laws and regulations may prevent data sharing in the context of an investigation?

  4. Confidentiality

    A duty of confidentiality may arise under the common law, which protects confidential information.  In order for such a duty to arise:

    • the information to be disclosed must have the “necessary quality of confidence” (i.e. it must not be something that is public knowledge); and
    • it must have been disclosed in circumstances importing an obligation of confidence.

    Generally, the person in possession of confidential information must not make use of it to the prejudice of the person who provided it, without obtaining their consent. 

    The confidentiality obligation can be breached by either unauthorised disclosure or unauthorised use of the confidential information.

    Banking confidentiality

    There is also a common law duty of confidentiality between a "banking business" and its clients. This implied duty means that a bank may not divulge confidential information about its client unless the client in question has consented or an exemption applies.

    The meaning of a "banking business" relates to the business carried on by the entity instead of any regulated status. The three main factors that indicate a banking transaction are:

    • keeping current accounts for customers, in which credits and debits are entered;  
    • accepting money from and collecting cheques for customers and placing them in credit; and  
    • paying cheques drawn on the relevant account and debiting customers accordingly.

    The general duty of banking confidentiality can therefore apply to any business engaging in these activities, even if that institution does not consider itself to be a bank.

    The implied duty applies to any information about a client (both natural and legal persons) that the bank acquires in the course of providing services. 

    Client consent to a transfer of confidential information should be informed but may be obtained via a website or standard terms and conditions.

    Exemptions to the common law duty of banking confidentiality have been found in certain limited circumstances, including where:

    • there is a compelling public interest reason for the disclosure;  
    • there is compulsion by law;  
    • the disclosure is under compulsion by order of court; or  
    • disclosure is necessary in the interests of the bank.

    Legal professional privilege

    There are two types of legal professional privilege under English law: legal advice privilege and litigation privilege. Whilst neither acts to prevent the sharing of personal data, when considering whether confidential communications should be disclosed more generally it is important to consider whether privilege may arise.

    Legal advice privilege applies to confidential communications that pass between a lawyer and their client and that have come into existence for the purpose of giving and receiving legal advice about what should be prudently and sensibly done in the relevant legal context. The English courts have held that the “client” for the purposes of legal advice privilege is those individuals authorised to seek and receive legal advice. Litigation privilege applies to confidential communications between (i) a client and a lawyer, (ii) a lawyer and a third party, or (iii) a client and a third party, that were made for the dominant purpose of seeking or obtaining legal advice or evidence in connection with the conduct of (adversarial) litigation where that litigation was pending, reasonably in prospect or existing. The English court has recently considered the rules for litigation privilege, including the requirement that the dominant purpose for the creation of the communication be for use in existing or contemplated litigation.

    Once established, legal professional privilege is a substantive right to withhold disclosure of privileged documents from various third parties. 

    Other

    There are other laws and regulations relating to the sharing of data in a criminal context, which may be relevant for the purposes of an investigation depending on the specific context. These include: the Proceeds of Crime Act 2002; the Crime (International Co-operation) Act 2003; Part 49 of the Criminal Procedure Rules 2015 (SI 2015/1490); the Criminal Justice (European Investigation Order) Regulations 2017; and the Crime (Overseas Production Orders) Act 2019.

  5. 3.

    What can constitute personal data for the purposes of data protection laws?

  6. The GDPR defines personal data as any data relating to a living individual who can be identified directly or indirectly from that data, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that living person.

    Data that are truly anonymised will not be "personal data" for the purposes of the GDPR, as they do not identify the individual.

  7. 4.

    Does personal data protection relate only to natural persons or also legal persons?

  8. Under the GDPR, personal data protection only extends to natural persons. It does not also cover legal persons.

  9. 5.

    To whom do data protection laws apply?

  10. The direct obligations under the GDPR apply primarily to controllers. A controller is defined in the GDPR as a person who (either alone or jointly with others) determines the purposes for which and the manner in which any personal data are processed. 

    However, the GDPR also imposes certain direct obligations on processors. A processor is defined in the GDPR as a person who processes personal data on behalf of the controller.

  11. 6.

    What acts or operations on personal data are regulated by data protection laws?

  12. The GDPR applies to "processing", which is defined broadly and includes any activity in relation to personal data (whether or not by automated means). A number of examples are provided in the GDPR, including the collection, use, disclosure and destruction or erasure of personal data.

  13. 7.

    What are the principal obligations on data controllers to ensure the proper processing of personal data?

  14. A privacy notice should be provided to the data subject at the time the personal data is obtained (unless an exemption applies). In all circumstances, this must include (articles 13 and 14 of the GDPR):

    • the identity and contact details of the controller;  
    • the contact details of the data protection officer, where applicable; 
    • the purposes and legal basis for the processing (including any legitimate interests relied upon where this is the legal basis for processing, and the right to withdraw any consent at any time);  
    • the categories of personal data concerned;  
    • any recipients or categories of recipients of the personal data; and
    • where applicable, the fact that the controller intends to transfer personal data to a third country, the existence (or absence) of an adequacy decision by the European Commission and, if there is no adequacy decision, the safeguards used for the transfer of that personal data (see question 16).

    The controller should also inform the data subject of the period for which their personal data will be stored; the existence of the right to request access, rectification or erasure; the right to restrict the processing; the right to object to the processing; the right to data portability; the existence of automated decision making (including profiling); and the right to lodge a complaint with a supervisory authority.

    If the personal data has been obtained directly from the data subject, article 13 of the GDPR will apply and the controller must also inform the data subject whether the provision of personal data is subject to a statutory or contractual requirement and of any potential consequences of failing to provide that personal data. 

    It may be the case in an investigations context that personal data has not been obtained directly from the data subject. If this is the case, article 14 of the GDPR will apply and the fair processing information given to data subject must also include the categories of personal data processed, the source of personal data and details of any personal data obtained from directly accessible sources.

    The GDPR sets out a number of data protection principles that controllers must comply with. The first principle is that personal data must be processed "lawfully, fairly and in a transparent manner". This means that data cannot be processed unless there is a legal basis under article 6 of the GDPR. The following legal bases are available:

    • the data subject has given his or her consent to the processing for one or more specific purposes;  
    • the processing is necessary for the performance of a contract to which the data subject is a party or for the taking of steps at the request of the data subject with a view to entering into a contract;  
    • the processing is necessary for compliance with a legal obligation to which the controller is subject;  
    • the processing is necessary to protect the vital interests of the data subject or another natural person;  
    • the processing is necessary for performing tasks in the public interest or in the exercise of official functions by the controller (further clarification on this point is set out in section 8 of the DPA); or  
    • the processing is necessary for the purposes of legitimate interests pursued by the controller or by a third party, except where the processing is unwarranted by reason of prejudice to the interests and fundamental rights and freedoms of the data subject.

    In respect of sensitive data (or “special categories of personal data”), the processing must also comply with one of the stricter legal bases set out in article 9 of the GDPR and section 10 and Schedule 1, Part 1 of the DPA. Sensitive data is defined as information relating to: racial or ethnic origin; political opinions; religious and philosophical beliefs; trade union membership; genetic data and biometric data for the purpose of uniquely identifying a natural person; data concerning health; and sex life and sexual orientation. In an investigations context, relevant conditions for the processing of sensitive data may include where:

    • the individual has given their explicit consent to the processing for one or more specified purposes;
    • the processing is necessary for the establishment, exercise or defence of legal claims or whenever courts are acting in their judicial capacity; or
    • the processing is necessary for reasons of substantial public interest, on the basis of Union or member state law, where this is proportionate to the relevant aim and safeguards the rights and interests of data subjects.

    The processing of data about criminal convictions and offences is dealt with separately to sensitive data, under article 10 of the GDPR. This provides that such data can only be processed where authorised under national law (for the UK, this would be the DPA). The DPA provides further information on what is considered the “public interest” in the UK and limits the application of certain provisions of the GDPR where personal data is processed for the detection or prevention of crime or the operation of the justice system (see question 17 for further details).

    Controllers must comply with the following data protection principles:

    • Principle 1: personal data must be processed lawfully, fairly and in a transparent manner in relation to the data subject (“lawfulness, fairness and transparency”, see above for further details on transparency requirements);
    • Principle 2: personal data should be obtained only for specified, explicit and legitimate purposes and should not be further processed in any manner incompatible with those purposes (“purpose limitation”);  
    • Principle 3: personal data should be adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed (“data minimisation”);  
    • Principle 4: personal data should be accurate and, where necessary, kept up to date (“accuracy”);  
    • Principle 5: personal data should be kept in a form that permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed (“storage limitation”);  
    • Principle 6: personal data should be processed in a manner that ensures appropriate security of that personal data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures (“integrity and confidentiality”); and
    • The controller must also be able to demonstrate compliance with each of these principles (“accountability”). 

    In addition, under Chapter V of the GDPR personal data may not be transferred to a country or territory outside the EEA unless the European Commission has decided that the third country or territory ensures an adequate level of protection or if the controller or processor has provided appropriate safeguards and on condition that enforceable data subject rights and effective legal remedies for data subjects are available.

    DATA EXTRACTION BY THIRD PARTIES FOR DATA COLLECTION PURPOSES

  15. 8.

    Before data extraction by third parties commences, should steps be taken to ascertain whether non-locally generated data was lawfully transferred to, or within, your jurisdiction in the first instance?

  16. While there are no specific steps required under the GDPR, it is advisable to check that non-locally generated data was transferred to, or within, the jurisdiction in compliance with relevant data protection laws and regulations. This may include: 

    • ascertaining what data has been transferred to, or within, the jurisdiction and the natural and/or legal persons to which that data relates;  
    • reviewing the privacy notice provided to data subjects;  
    • ascertaining the legal basis for the processing (see question 7); and/or  
    • determining whether a contract or other safeguard applies to the transfer of that data (eg, a data processing agreement, data transfer agreement or binding corporate rules, as appropriate).

    In particular, the above may inform whether certain restrictions may apply to further processing of that data.

  17. 9.

    Are there additional requirements where third parties process the data on behalf of the entity to which data protection laws primarily apply?

  18. Additional provisions of the GDPR apply where the data are processed by a processor on behalf of the controller. The primary factor considered is control of the data rather than its possession, so the controller must ensure that the third-party processor is complying with the requirements on the security of data set out in the GDPR. A written contract to this effect must be entered into between the processor and controller (article 28 of the GDPR). This contract must include a description of the data processing activities and require the processor, among other things, to:

    • act only on the documented instructions of the controller (including with regard to international transfers of data to a third country);  
    • ensure that persons who process the data have committed to confidentiality or are under a statutory duty of confidentiality;  
    • implement appropriate security measures in accordance with the GDPR;  
    • engage a sub-processor only with the prior authorisation of the controller;  
    • assist the controller in carrying out its obligations to respond to requests by data subjects to exercise their rights under the GDPR; and  
    • assist the controller in ensuring its compliance with its data security obligations.

    Where a processor engages a sub-processor, the contract between them must reflect the same data protection obligations as set out in the contract between the controller and the processor.

    These provisions of the GDPR apply to processors within the same corporate group in the same way as to other third-party processors.

    The GDPR also imposes certain direct obligations on processors. These include an obligation to: (i) maintain a written record of processing activities carried out on behalf of each controller; (ii) designate a data protection officer where required; (iii) appoint a representative (when not established in the EU) in certain circumstances; and (iv) notify the controller without undue delay on becoming aware of a personal data breach.

  19. 10.

    Is the consent of the data subject mandatory for the processing of personal data as part of an investigation? And how can consent be given by a data subject?

  20. The consent of the data subject is one legal basis for processing of personal data under the GDPR. Data subject consent is therefore not mandatory for the processing of personal data, but consent must be obtained if no other legal basis exists.

    There is no prescribed form for the consent, but it should be freely given, specific, informed and unambiguous. In addition, to the extent relied upon as a basis for international transfers, consent must also be explicit (see question 16). Consent can also be withdrawn at any time and must be as easy to withdraw as to give.

    Consent can be obtained through a website or other electronic means.

    In the case of sensitive data, where consent is relied on to provide a legal basis under article 9 GDPR, it must also be explicit. A controller may therefore wish to obtain consent by means of an additional formality to demonstrate “explicit” consent (eg, a wet ink signature or a tick box that expressly uses the word “consent”).

  21. 11.

    If not mandatory, should consent still be considered when planning and carrying out an investigation?

  22. Consent may be considered as an enabling action when planning an investigation. However, obtaining consent to the processing of personal data can be practically challenging, and proceeding with processing of personal data in reliance solely on this ground is rarely appropriate. One reason is that consent must be capable of being withdrawn at any time (a right that it is not possible to contract out of, which would be difficult to manage in the context of the investigation).

  23. 12.

    Is it possible for data subjects to give their consent to such processing in advance?

  24. Whether consent given in advance, eg through general terms and conditions or account opening information, is sufficient for the purposes of the GDPR depends, among other things, on the balance of power between the controller and data subject. Consent is not freely given (and so is invalid) if a data subject has no genuine or free choice or cannot refuse or withdraw consent without detriment, or there is a clear imbalance between the parties. Consent included within an employment contract, or obtained generally by an employer from an employee, is unlikely to be valid for this reason.

    Written requests for consent must be clearly distinguishable from other matters, be intelligible, be easily accessible and use clear and plain language. This means that consent should not be hidden among other terms and conditions. In any event, there is a risk that a generic consent provided through general terms and conditions is not specific and informed, and so not validly given by the data subject.

    The controller should also consider the requirement for consent to the processing for sensitive data to be explicit (see question 7).

  25. 13.

    What rights do data subjects have to access or verify their personal data, or to influence or resist the processing of their personal data, as part of an investigation?

  26. A data subject has a right to request information regarding whether their personal data is being processed, known as a data subject access request (DSAR). The information that can be requested includes a description of the data, the purpose for which it is being processed and to whom it may be disclosed. The controller must also provide a copy of the personal data to the data subject.

    Following decisions of the English Court of Appeal under the Data Protection Act 1998, the motive behind a DSAR (eg, if it is made to assist in litigation) does not affect a controller’s duty to respond to it. Provided the DSAR is not an abuse of the court’s process and does not result in a conflict of interest, the court will not use the purpose of a DSAR as a reason to limit the exercise of its discretion to compel an organisation to respond. Privileged material can be withheld, although privilege is narrowly construed to English law only and the English Court of Appeal has held that privileged material must still be searched.

    A controller is not required to provide personal data in response to a “manifestly unfounded or excessive” request from a data subject (article 12(5) of the GDPR). If relying on this exemption, a controller should retain evidence to demonstrate why it considers the request to be unfounded or excessive. If a controller refuses to act on a request, they must also inform the data subject of the reason why and tell the data subject that they can complain to their relevant supervisory authority and enforce their right through judicial remedy.

    Data subjects have the right to request rectification of any personal data relating to them that is inaccurate, and completion of any incomplete data, including by way of a supplementary statement. There is an obligation on a controller under the GDPR to ensure the personal data it keeps is accurate (see question 7).

    Data subjects have the right to obtain from the controller the erasure of their personal data without undue delay if one of the specified grounds applies. This includes where the data is no longer necessary in relation to the purposes for which it was collected or otherwise processed, or where the data subject has withdrawn consent (and there is no other legal ground for the processing).

    Data subjects have a right to object to the processing of personal data concerning them at any time. A controller must adhere to this objection unless it can demonstrate a legitimate basis for the processing that overrides the interests of the data subject, or if the processing is necessary within legal proceedings. A data subject also has a right to obtain a restriction of processing from the controller where it believes the relevant personal data is inaccurate, the processing is unlawful or the controller no longer needs the data for the purposes of the processing. If the latter is the case, the data subject can require the controller to limit the processing to that required in the context of legal proceedings.

    TRANSFER FOR LEGAL REVIEW AND ANALYSIS

  27. 14.

    How are law firms, and legal process outsourcing firms, generally characterised in your jurisdiction?

  28. ICO guidance suggests that law firms (and other professional service providers) are generally characterised as controllers in their own right. This is on the grounds that responsibility also lies with the law firm itself as it determines what information to obtain and process in order to perform its work and because it is answerable itself for the content. The ICO cites the fact that lawyers control the detailed content of their advice and also have their own professional responsibilities (in areas such as record keeping and confidentiality of communications) as suggestive of lawyers being controllers in their own right.

    A legal process outsourcing firm is likely to be considered as a third-party processor in relation to the processing of personal data relating to its clients. This means that the conditions set out at question 9 must be complied with when contracting with a legal process outsourcing firm for the review of documents containing personal data.

  29. 15.

    Are there any additional requirements, beyond those specified above, that regulate the disclosure of data to third parties within your jurisdiction for the purpose of reviewing the content of documents, etc?

  30. Financial institutions in the UK must also comply with, among other requirements:

    • the Principles and the Fundamental Rules set out by the Financial Conduct Authority (the FCA). These high-level principles require some financial institutions to take various measures to protect client data. They are applied on a case-by-case basis.
    • the guidelines on material outsourcing established by the European Banking Authority (EBA). The EBA’s guidelines (which will apply from 30 September 2019) set out a series of recommendations that providers of financial services must adhere to in respect of any outsourcing to the cloud, including in respect of the security of data, where geographically data is located and processed and the importance of contingency planning.
  31. 16.

    What rules regulate the transfer of data held in your jurisdiction to a third party in another country for the purpose of reviewing the content of documents, etc?

  32. The GDPR distinguishes between transfers to other jurisdictions within the EEA and transfers of data to jurisdictions outside the EEA.

    Within the EEA

    A transfer of personal data from this jurisdiction to a processor or controller in another EEA member state must comply with the same requirements as if the transfer was made within the jurisdiction (see question 7).

    Outside the EEA

    Personal data subject to the GDPR cannot be transferred to a country or territory outside the EEA unless that third country or territory provides an adequate level of protection for personal data.

    The European Commission has determined that certain non-EEA countries and recipients ensure an adequate level of protection for personal data and so a transfer can be made to such countries in compliance with the rules that provide restrictions on transfers outside the EEA. Currently, these countries are Andorra, Argentina, Canada (commercial organisations), Faeroe Islands, Guernsey, Israel, Isle of Man, Japan, Jersey, New Zealand, Switzerland and Uruguay.  

    Alternatively, the controller as transferor could ensure an adequate level of protection through:

    • entering into standard contractual clauses approved by the European Commission for both controller-to-processor and controller-to-controller transfers (note that it is expected that the ICO will adopt its own UK model clauses post-Brexit); or  
    • for transfers within the same group, adoption of binding corporate rules.

    For transfers of personal data to eligible and appropriately certified recipients in the United States, the controller may also rely on the “Privacy Shield”.

    Data can otherwise be transferred if one of the following derogations, among others, applies:

    • the data subject has consented to the transfer (as noted above, this consent should be explicit as well as freely given, specific, informed and unambiguous);  
    • the transfer is necessary for the performance of a contract between the data subject and controller or the implementation of pre-contractual measures taken at the data subject’s request;  
    • the transfer is necessary for the conclusion of a contract between the controller and a person other than the data subject, which is entered into in the data subject’s interests;  
    • the transfer is necessary for important reasons of public interest;   
    • the transfer is necessary for the establishment, exercise or defence of legal claims; or  
    • the transfer is necessary to protect the vital interests of the data subject.

    Where none of the above derogations is available, a transfer to a third country may take place if the transfer is not repetitive, concerns only a limited number of data subjects, is necessary for the purposes of compelling legitimate interests of the controller (which are not overridden by the interests or rights and freedoms of the data subject), and the controller has assessed all the circumstances surrounding the transfer and has, on the basis of that assessment, provided suitable safeguards with regard to protection of personal data. This ground for processing may only be relied upon where no other legal basis is available. The controller shall inform the supervisory authority of the transfer and, in addition to providing the information referred to in articles 13 and 14, shall inform the data subject of the transfer and on the compelling legitimate interests pursued. As such, this derogation is unlikely to be of practical application in the context of an investigation. 

    TRANSFER TO REGULATORS OR ENFORCEMENT AUTHORITIES

  33. 17.

    Under what circumstances is the transfer of personal data to regulators or enforcement authorities within your jurisdiction permissible?

  34. The transfer of personal data to regulators and enforcement authorities within the jurisdiction must comply with the GDPR in the same way as any other processing (see question 7). In particular, a legal basis must be established under article 6 GDPR. 

    There are exemptions from certain GDPR provisions that may apply. In particular, Schedule 1 of the DPA sets out the conditions for processing of sensitive data to be considered in the “public interest” for the purposes of article 9(2) GDPR. These include that the processing is necessary for:

    • the prevention or detection of an unlawful act, or for taking steps to establish whether an unlawful act has been committed;
    • protecting the public against dishonesty or malpractice;
    • the purpose of, or in connection with, legal proceedings (including prospective legal proceedings); or
    • the prevention of fraud.

    Additionally, Schedule 2 of the DPA disapplies certain provisions of the GDPR where the disclosure of personal data is necessary for the prevention of crime or where disclosure is required by a court or tribunal. The disapplied provisions include the rights afforded to data subjects and the requirement to provide a privacy notice.

  35. 18.

    Under what circumstances is the transfer of personal data held within your jurisdiction to regulators or enforcement authorities in another country permissible?

  36. The provisions applying to cross-border data transfer generally (see question 16) also apply to the transfer of data to regulators and law enforcement authorities out of the jurisdiction. Any transfer to an overseas regulator would have to comply with the GDPR in the same way as any other processing.

    Any disclosure of personal data to an overseas regulator or law enforcement authority would engage the first data protection principle (including the requirement to establish a legal basis under article 6 GDPR) and prohibitions on cross-border transfers of personal data. In particular, the first principle provides that processing of personal data must be fair, lawful and transparent.

    Any transfer of personal data to an overseas regulator or law enforcement authority may breach this principle on the basis that this is not a purpose about which the data subjects will have been sufficiently informed. The GDPR sets out exemptions to providing a privacy notice where this is impossible or would involve disproportionate effort on the part of the controller, but these exemptions are interpreted narrowly.

    The cross-border transfer of personal data would additionally require safeguards for the relevant transfer and a legal basis for processing. There is no clear exemption or derogation from either the first principle, the requirement for a legal basis for processing, or the prohibition on cross-border transfers that will routinely cover requests for data by a foreign regulator or law enforcement authority.

    The transfer may lack a legal basis, depending on the circumstances of the processing. The possible legal bases that a controller may rely on in this context include:

    • the consent of each affected data subject to the disclosure and transfer. However, as noted above, this can be problematic to obtain, can be withdrawn at any time and (in the case of sensitive data) consent must be explicit;
    • that the processing is necessary for the establishment, exercise or defence of legal claims, depending on the circumstances;
    • that the processing is in the legitimate interests of the controller (see question 16 for further details); or
    • that the processing is necessary for the performance of a task carried out in the public interests (see question 7 for further details on the application of this basis to the processing of sensitive data).

    The prohibition on cross-border transfers provides that personal data should not be transferred to a country outside the EEA that does not provide an adequate level of protection, unless an exemption applies or safeguards for the personal data are in place. Article 49 of the GDPR provides for derogations to the requirement for an adequacy decision or implementing safeguards in certain circumstances, including where the transfer is necessary for important reasons of public interest or for the establishment, exercise or defence of legal claims.

    The UK decided not to opt in to article 48 of the GDPR to the extent that it triggers the UK's rights under the protocol it has for EU matters relating to justice and home affairs. This article provides that, without prejudice to other grounds for international transfers, a decision from third country authorities, courts or tribunals does not in itself justify the transfer of personal data to a non-EEA country.

    This is the case unless the transfer is based on an international agreement, such as a mutual legal assistance treaty. The European Data Protection Board guidelines state, in relation to article 48: "In situations where there is an international agreement, such as a mutual legal assistance treaty (MLAT), EU companies should generally refuse direct requests and refer the requesting third country authority to existing MLAT or agreement."

  37. 19.

    What are some recommended steps to take on receipt of a request from a regulator for disclosure of personal data?

  38. The recipient of such a request may consider taking the following steps, amongst others:

    • Consider if there is a legal obligation to respond to the request and, if so, to what extent.  
    • Seek further information in writing from the requesting regulator to evaluate the purpose of the request.  
    • If possible, negotiate the scope of the request: for example, to target the specific information required for the purposes of the regulatory investigation.  
    • In accordance with principles of data minimisation and anonymisation, limit the scope of any data disclosed and transferred to that necessary for the purpose.  
    • Consider whether it is practicable to obtain data subject consent and/or give a further privacy notice.
    • Put in place a data processing agreement if data will be transferred to an affiliate or third party (acting as a processor).
    • Consider transfer via an MLAT as, in some cases, it may be possible to request that the requesting court or regulator requests data via an MLAT or other international agreement.
  39. 20.

    What are the sanctions and penalties for non-compliance with data protection laws?

  40. There is a tiered approach to penalties for breaches of the GDPR. This permits data protection authorities to impose fines for some infringements of up to the higher of 4 per cent of annual worldwide turnover and €20 million (eg, for breach of requirements relating to cross-border transfers or the principles for processing, such as conditions for consent). Other specified infringements attract a fine of up to the higher of 2 per cent of annual worldwide turnover and €10 million.

    The GDPR contains a list of points to consider when imposing fines, such as the nature, gravity and duration of the infringement. 

    The ICO is responsible for enforcing the GDPR, but in certain circumstances enforcement will be conducted through the courts (eg, under article 79(1) of the GDPR, data subjects have a right to an “effective judicial remedy” where they consider their rights under the GDPR have been infringed as a result of the processing of their personal data in non-compliance with the GDPR).

    There are a number of criminal offences under the DPA (eg, the re-identification of personal data that has been "de-identified" or making a false statement in response to an information notice). A failure to comply with the provisions on cross-border transfer is not in itself a criminal offence, but the ICO may issue an enforcement notice ordering a remedy (and failure to comply is a criminal offence). The maximum penalty for criminal offences under the DPA is an unlimited fine.

    Where any offence under the GDPR is committed by a body corporate with the consent or approval of an officer such as a director or other employee, that person will also be guilty of the offence and will be liable to punishment under the DPA accordingly.

    The ICO may also:

    • serve information notices requiring organisations to provide the ICO with specified information within a certain time period;  
    • issue undertakings committing an organisation to a particular course of action to improve its compliance;  
    • serve enforcement notices and "stop now" orders where there has been a breach, requiring organisations to take (or refrain from taking) specified steps to ensure they comply with the law;  
    • conduct consensual assessments (audits) to check organisations are complying; 
    • prosecute those who commit offences under UK data protection laws;  
    • serve assessment notices to conduct compulsory audits to assess whether organisations processing of personal data follows good practice; and  
    • report to the UK Parliament on issues of concern.

    A data subject who suffers material or non-material damage as a result of a breach of the GDPR by a controller may bring a civil claim for compensation. The DPA extends this to include any other data protection legislation in the UK and clarifies that “non-material damage” includes distress.

    CONTINUING OBLIGATIONS ON ORIGINAL AND INTERVENING DATA CONTROLLERS

  41. 21.

    What are the continuing obligations on the original data controller that apply in an investigation?

  42. A controller’s obligations under the GDPR are continuing for as long as it remains a controller. As a result, it should ensure compliance with the GDPR, where applicable, at all stages of the investigation.

    Practical steps that a controller should follow include:

    • ensuring that any third-party processing data on behalf of the controller signs a data processing agreement and/or data transfer agreement, as applicable;  
    • ensuring that all personal data processed is accurate and, where applicable, that the consent of data subjects remains valid;
    • complying with the restrictions on the transfer of data to third parties set out at question 16 (whether within or outside the EEA), including any transfer to a regulator or law enforcement authority; and
    • maintain a record of processing and respond to data subject requests.
  43. 22.

    What are the continuing obligations on any intervening data controller that apply in an investigation?

  44. The original and intervening controllers should ensure that a written agreement is in place between them and follow the steps to address their continuing obligations set out at question 21.

    RELEVANT MATERIALS

  45. 23.

    Provide a list of relevant materials, including any decisions or guidance of the data protection authority in your jurisdiction regarding internal and external investigations, and transfers to regulators or enforcement authorities within and outside your jurisdiction.

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Questions

  1. 1.

    What laws and regulations in your jurisdiction regulate the collection and processing of personal data?


  2. 2.

    What other laws and regulations may prevent data sharing in the context of an investigation?


  3. 3.

    What can constitute personal data for the purposes of data protection laws?


  4. 4.

    Does personal data protection relate only to natural persons or also legal persons?


  5. 5.

    To whom do data protection laws apply?


  6. 6.

    What acts or operations on personal data are regulated by data protection laws?


  7. 7.

    What are the principal obligations on data controllers to ensure the proper processing of personal data?


  8. DATA EXTRACTION BY THIRD PARTIES FOR DATA COLLECTION PURPOSES

  9. 8.

    Before data extraction by third parties commences, should steps be taken to ascertain whether non-locally generated data was lawfully transferred to, or within, your jurisdiction in the first instance?


  10. 9.

    Are there additional requirements where third parties process the data on behalf of the entity to which data protection laws primarily apply?


  11. 10.

    Is the consent of the data subject mandatory for the processing of personal data as part of an investigation? And how can consent be given by a data subject?


  12. 11.

    If not mandatory, should consent still be considered when planning and carrying out an investigation?


  13. 12.

    Is it possible for data subjects to give their consent to such processing in advance?


  14. 13.

    What rights do data subjects have to access or verify their personal data, or to influence or resist the processing of their personal data, as part of an investigation?


  15. TRANSFER FOR LEGAL REVIEW AND ANALYSIS

  16. 14.

    How are law firms, and legal process outsourcing firms, generally characterised in your jurisdiction?


  17. 15.

    Are there any additional requirements, beyond those specified above, that regulate the disclosure of data to third parties within your jurisdiction for the purpose of reviewing the content of documents, etc?


  18. 16.

    What rules regulate the transfer of data held in your jurisdiction to a third party in another country for the purpose of reviewing the content of documents, etc?


  19. TRANSFER TO REGULATORS OR ENFORCEMENT AUTHORITIES

  20. 17.

    Under what circumstances is the transfer of personal data to regulators or enforcement authorities within your jurisdiction permissible?


  21. 18.

    Under what circumstances is the transfer of personal data held within your jurisdiction to regulators or enforcement authorities in another country permissible?


  22. 19.

    What are some recommended steps to take on receipt of a request from a regulator for disclosure of personal data?


  23. 20.

    What are the sanctions and penalties for non-compliance with data protection laws?


  24. CONTINUING OBLIGATIONS ON ORIGINAL AND INTERVENING DATA CONTROLLERS

  25. 21.

    What are the continuing obligations on the original data controller that apply in an investigation?


  26. 22.

    What are the continuing obligations on any intervening data controller that apply in an investigation?


  27. RELEVANT MATERIALS

  28. 23.

    Provide a list of relevant materials, including any decisions or guidance of the data protection authority in your jurisdiction regarding internal and external investigations, and transfers to regulators or enforcement authorities within and outside your jurisdiction.