Ireland’s new Data Protection Commissioner, Helen Dixon spoke to Accountancy Ireland about the challenges in this complex and growing area and the opportunities that it presents for Chartered Accountants.
Last year, a high-profile data protection case sent shockwaves across the credit union sector when the directors of a ‘tracing agent’ company were successfully prosecuted by the Data Protection Commissioner. The case concerned a private investigations company employed by a credit union to obtain up-to-date contact information on certain individuals. While it is not unusual for companies in the financial services sector to use tracing agents to pursue clients for unpaid debts, in this particular case, the agent had misrepresented itself to a Government Dept and a State agency in order to obtain personal information. Under s29 of the Data Protection Act, the Commissioner successfully prosecuted the directors of MCK Investigations and sent a clear message to companies that they must rely on legitimate methods when collecting personal information.
While high-profile cases grab the headlines, most of the complaints received by the Data Protection Commissioner are smaller in scale. Typically, complainants are individuals who have sought access to a copy of the personal data held about them by an organisation where the organisation has either failed to provide the information or failed to provide it within the statutory 40-day period.
Appointed in September 2014, Helen Dixon took up her new role at a time when the protection of individuals’ data is rarely out of the news. In Ireland, as in other EU member states, data protection legislation derives from the 1995 Data Protection Directive and personal data can only be gathered legally under strict conditions, for a legitimate purpose and organisations that obtain and manage personal information have a duty to protect it from misuse.
Multinational companies like Facebook and LinkedIn with EU headquarters in Ireland, make Dixon responsible for protecting the personal data of millions of European citizens. On average, her office receives about 1,000 individual complaints and 2,500 notifications of breaches each year.
“While the majority of complaints are made by individuals, of course we also deal with more systemic complaints where, for example, a company notifies us that its website has been hacked or that it has lost laptops with unencrypted data. We investigate those breaches but in general our work is about the individual’s right to data protection and vindicating that right in individual cases. That surprises a lot of people but that’s what we’re doing,” Ms Dixon said.
Prior to taking up her appointment, Ms Dixon was the Companies Registrar so she has moved from an area governed by prescriptive and precedent-based legislation to one that is principles-based where she is required to strike a balance between the fundamental right to data protection and other interests.
“Part of the balance will be working out what people find acceptable and what people wish to see in the public domain.”
Recognising the growing challenges of protecting personal data in the digital age, the Irish Goverment approved an increase in funding (to €3.65 million) for the Data Protection Commissioner’s office last year and is currently recruiting an additional 18 staff to augment the existing team of 29, most of whom are based in Portarlington, Co Laois.
Company obligations
Under data protection law companies registered in Ireland must:
Fairly and lawfully obtain data;
Process the data fairly;
Use data only for the purposes for which it was collected;
Store data securely;
Retain data for no longer than necessary; and
Provide a right of access so that individuals can correct data held about them or request that their data be deleted.
Guidance for companies and individuals covering a wide range of topics including purpose limitation and retention, access requests, transfers of data abroad, data sharing in the public sector, direct marketing issues and employment related issues, is available online at www.dataprotection.ie.
Data protection audits
Around 40 organisations undergo data protection audits each year and this number is likely to increase with the additional resources that are being provided.
In 2014, organisations audited included 10 in the public sector/voluntary sector and 30 private sector organisations ranging from accountancy firms and financial services to slimming companies. Audits conducted by the Data Protection Commissioner show that some organisations “still don’t understand their statutory obligation to respond to data access requests within a 40-day period”, Ms Dixon said, adding that the audit teams also identified:
Failures to limit the use of personal information to the purposes for which it was collected; and
Retention of personal information for longer than legitimately required.
“Purpose limitation is an issue that we see quite a lot. Organisations are taking in personal data for legitimate purposes which they state to their customers but are then using the data later on for a different purpose, such as direct marketing, without having obtained the consent of the person to directly market to them.
“Retention is another issue that comes up in audits. The legislation says that data should be retained for no longer than necessary but electronic records and cheap storage have led some organisations to retain records simply because they can do so without ever thinking about whether they still need to hold on to the data. So that’s an area organisations need to focus on.”
Organisations should have a clear data retention policy: “Typically when we do an audit, if organisations have thought about their data retention policy and can justify it and have set out their analysis and reasons, that will satisfy us because it is for an organisation to set out what statutory requirements it might have to keep data or to set out what other justifications it might have to keep limited data.”
Asked how companies are selected for audit, Ms Dixon explained that aggregated information from complaints, information gleaned during audits and comparative international information helps identify “risky” sectors. She stressed that some audited companies had “exemplary” pro-cesses in place with full information management statements, clear data pro-tection protocols and good training for staff.
“They maintain separate data subject access and breach registers and when an event occurs, they are able to make a clear decision as to whether to notify the Data Protection Commissioner,” she explained.
Public information
Setting appropriate boundaries for the protection of publicly accessible information presents interesting data protection challenges. Asked to comment on last year’s controversy which arose when The Irish Times reported that a member of the public had been able to access personal information on the www.irishgenealogy.ie website, Ms Dixon said: “There was a view in some quarters that since you can go in and access a birth certificate because it is a publicly available record, it be an idea to make it more conveniently searchable online. But in fact from a data protection point of view there are issues around the hyper-accessibility of data and there is a big difference in data protection terms between having publicly available information where access is managed in a specific and measured way and having the same information available on a public website that is searchable simply surname.”
“A similar issue arose in the Companies Registration Office where the register of companies includes the names and addresses of directors and officers. That information was set up so as to be searchable by company, and only when you had identified the company, could you drill down to request documents that would identify the directors. How you make information accessible is an important data protection question.”
Data protection in the EU
Ireland is part of the EU Working Party on the Protection of Individuals with regard to the processing of Personal Data established under Article 29 of the 1995 Directive. The Directive was transposed differently by individual member states with the result that there are differences in how complaints are dealt by different regulators. A proposed new EU Regulation seeks to achieve greater consistency by putting in place common rules across the EU to strengthen the protection of individuals’ privacy.
Within the EU, personal data means any information relating to an individual, whether it relates to his or her private, professional or public life – from a name, a photo, an email address, bank details, your posts on social networking websites, your medical information, or your computer's IP address.
Social media
Social media organisations obtain and control vast amounts of personal information volunteered by individuals and regulating these organisations involves gaining an understanding of the services they offer, how they are using data, and how they have obtained consent.
Ms Dixon said that individuals, as well as companies, have responsibilities to protect personal data. Individuals should read the privacy notices and cookie statements on websites, for example, but organisations must ensure that these notices are clear and that the propositions being put to individuals are reasonable.
“There is a lot to be learned and we are part of an Article Working Party where we coordinate compliance terms with our colleagues across Europe,” Ms Dixon said.
Accountants and auditors
Asked whether the increased resourcing of her office could create future career opportunities for Chartered Accountants, Ms Dixon said that the auditing and analysis skills of Chartered Accountants would be useful in organising audits, understanding the types of analysis that need to be done and the best practice recommendations that need to be made. Internal and external auditors and accountants can play an important role in helping organisations to assess their data protection compliance, Ms Dixon suggested. They have the skills to help an organisation review the data it collects, assess whether the data is obtained fairly, and whether customers are advised of why the data is being collected. For example, where personal information is being collected under anti-money laundering legislation, that would involve explaining to the individual customer why the data is being collected, how long it will be retained and for what purpose. Accountants also have the skills to test whether data collected for a specified purpose is only used for that purpose and to verify that the organisation is not using personal information for other purposes or selling or sharing the data with third parties where it shouldn’t.
“Depending on the skills of the accountant, he/she may be able to make enquiries as to the security of storage of personal information. Certainly the accountant may be able to identify issues with physical storage where it is visible that personal data is being stored in boxes in an unlocked room and without a proper filing system or access control.
“The privileged position internal and external auditors hold in organisations makes it possible for them to identify these issues and to assess whether front line staff in organisations are trained,” Ms Dixon suggested.
Whoever fills the 18 positions currently advertised, it seems likely that these won’t be the last new vacancies in the Data Protection Commissioner’s office. Rapid developments in the digital age together with the proposed new General Data Protection Regulation should ensure that there will be no shortage of work for Ms Dixon and her team in the years ahead.