A New GDPR Fine and a New ICO Enforcement Approach
Ibrahim Hasan looks at some recent fines issued to public bodies by the ICO and analyses what they show about the Commissoner's approach to enforcement.
Since May 25th 2018, the Information Commissioner’s Office (ICO) has issued ten GDPR fines. The latest was issued on 30th June 2022 to Tavistock and Portman NHS Foundation Trust for £78,400. The Trust had accidentally revealed 1,781 adult gender identity patients’ email addresses when sending out an email.
This is the second ICO fine issued to a Data Controller in these circumstances. In 2021, HIV Scotland was fined £10,000 when it sent an email to 105 people which included patient advocates representing people living with HIV. All the email addresses were visible to all recipients, and 65 of the addresses identified people by name. From the personal data disclosed, an assumption could be made about individuals’ HIV status or risk.
The latest fine was issued to Tavistock and Portman NHS Foundation Trust following an email sent in early September 2019. The Trust intended to run a competition inviting patients of the adult Gender Identity Clinic to provide artwork to decorate a refurbished clinic building. It sent two identical emails promoting the competition (one to 912 recipients, and the second to 869 recipients) before realising they had not Bcc’d the addresses.
It was clear from the content of the email that all the recipients were patients of the clinic, and there was a risk further personal details could be found by researching the email addresses. The Trust immediately realised the error and tried, unsuccessfully, to recall the emails. It wrote to all the recipients to apologise and informed the ICO later that day.
The ICO investigation found:
- Two similar, smaller incidents had affected a different department of the same Trust in 2017. While that department had strengthened their processes as a result, the learning and changes were not implemented across the whole Trust.
- The Trust was overly reliant on people following policy to prevent bulk emails using ‘to’ in Outlook. There were no technical or organisational safeguards in place to prevent or mitigate against this very predictable human error. The Trust has since procured specialist bulk email software and set “a maximum ‘To’ recipient” rule on the email server.
The ICO reduced the fine issued to the Trust from £784,800 to £78,400 to reflect the ICO’s new approach to working more effectively with public authorities. This approach, which will be trialled over the next two years, was outlined in an open letter from the UK Information Commissioner John Edwards to public authorities. It will see more use of the Commissioner’s discretion to reduce the impact of fines on the public sector, coupled with better engagement including publicising lessons learned and sharing good practice.
In practice, the new approach will mean an increased use of the ICO’s wider powers, including warnings, reprimands and enforcement notices, with fines only issued in the most serious cases. When a fine is considered, the decision notice will give an indication on the amount of the fine the case would have attracted. This will provide information to the wider economy about the levels of penalty others can expect from similar conduct. Additionally, the ICO will be working more closely with the public sector to encourage compliance with data protection law and prevent harms before they happen.
The ICO followed its new approach recently when issuing a reprimand to NHS Blood and Transplant Service. in August 2019, the service inadvertently released untested development code into a live system for matching transplant list patients with donated organs. This error led to five adult patients on the non-urgent transplant list not being offered transplant livers at the earliest possible opportunity. The service remedied the error within a week, and none of the patients involved experienced any harm as a result. The ICO says that, if the revised enforcement approach had not been in place, the service would have received a fine of £749,856.
The new approach will be welcome news to the public sector at a time of pressure on budgets. However some have questioned why the public sector merits this special treatment. It is not as if it has been the subject of a disproportionate number of fines. The first fine to a public authority was only issued in December 2021 (more than three and a half years after GDPR came into force) when the Cabinet Office was fined £500,000 for disclosing postal addresses of the 2020 New Year Honours recipients online. Perhaps the ICO is already thinking about the reform of its role following the DCMS’s response to last year’s GDPR consultation. It will be interesting to see if others, particularly the charity sector, lobby for similar treatment.
Ibrahim Hasan is a solicitor and director of Act Now Training.
This and other GDPR developments will be discussed in detail in ActNow's forthcoming GDPR Update workshop.