Data Protection Bill [HL] — House of Lords, 2017-11-22
Topic: Civil Rights
Thomas Ashton (Conservative, Centre-right): My Lords, I am grateful to all noble Lords who have spoken on this very important clause. I agree very much with the noble Lords, Lord Clement-Jones and Lord Stevenson, that these are important issues which we need to consider. The amendments seek to amend Clause 162, which introduces the offence of re-identifying data that has been de-identified. I will start by giving some background to this clause because, as noble Lords have mentioned, this is new to data protection legislation Pseudonymisation of datasets is increasingly commonplace in many organisations, both large and small. This is a very welcome development: where sensitive personal data is being processed in computerised files, it is important that people know that data controllers are taking cybersecurity seriously and that their records are kept confidential. Article 32 of the GDPR actively encourages controllers to implement technical and organisational measures to ensure an appropriate level of security, including, for example, through the pseudonymisation and encryption of personal data As noble Lords will be aware, the rapid advancement of technology has opened many doors for innovation in these sectors. However, as we continue to be able to do more with technology, the risk of its misuse also grows. Online data hackers and scammers are a much more prominent and substantial threat than was posed in 1998, when the original Data Protection Act was passed. It is appropriate, therefore, that the Bill addresses the contemporary challenges posed by today’s digital world. This clause responds to concerns raised by the National Data Guardian for Health and Care and other stakeholders regarding the security of data kept in online files, and is particularly timely following the well-documented cyberattacks on public and private businesses over the last few years It is important to note that the Bill recognises that there might be legitimate reasons for re-identifying data without the consent of the controller who encrypted it. The clause includes a certain number of defences, as my noble friend Lady Neville-Rolfe mentioned. These can be relied on in certain circumstances, such as where re-identification is necessary for the purpose of preventing or detecting crime, to comply with a legal obligation or is otherwise necessary in the public interest. I am aware that some academic circles, including Imperial College London, have raised concerns that this clause will prohibit researchers testing the robustness of data security systems. However, I can confidently reassure noble Lords that, if such research is carried out with the consent of the controller or the data subjects, no offence is committed. Even if the research is for legitimate purposes but carried out without the consent of the controller who de-identified the data in the first place, as long as researchers act quickly and responsibly to notify the controller, or the Information Commissioner, of the breach, they will be able to rely on the public interest defences in Clause 162. Finally, it is only an offence to knowingly or recklessly re-identify data, not to accidentally re-identify it. Clause 162(1) is clear on that point I turn to the specific amendments that have been tabled in this group. Amendment 170CA seeks to change the wording in line 3 from "de-identified" to "anonymised". The current clause provides a definition of de-identification which draws upon the definition of "pseudonymisation" in article 4 of the GDPR. We see no obvious benefit in switching to "anonymised". Indeed, it may be actively more confusing, given that recital 26 appears to use the term "anonymous information" to refer to information that cannot be re-identified, whereas here we are talking about data that can be—and, indeed, has been—re-identified Amendment 170CB seeks to provide an exemption for re-identification for the purpose of demonstrating how the personal data can be re-identified or is vulnerable to attacks. The Bill currently provides a defence for re-identification where the activity was consented to, was necessary for the purpose of preventing or detecting crime, was justified as being in the public interest, or where the person charged reasonably believes the activity was, or would have been, consented to. So long as those re-identifying datasets can prove that their actions satisfy any of these conditions, they will not be guilty of an offence. In addition, we need to be careful here not to create defences so wide that they become open to abuse Amendment 170CC seeks to add to the definition of what constitutes re-identification. I agree with the noble Lord that current techniques for re-identification involve linking datasets. However, we risk making the offence too prescriptive if we start defining exactly how re-identification will occur. As noble Lords, including the noble Lord, Lord Clement-Jones, mentioned, as technology evolves and offenders find new ways to re-identify personal data, we want the offence to keep pace Amendment 170E seeks to add an extra defence for persons who achieve approval for re-identifying de-identified personal data after the re-identification has taken place. The current clause provides a defence where a person acted in the reasonable belief that they would have had the consent of the controller or the data subject had they known about the circumstances of the re-identification. Retroactive approval for the re-identification could be relied on as evidence in support of that defence, so we believe that there is no need to provide a separate defence for retroactive consent.