UK: Arbitrators, Adjudicators And GDPR Is It YK2 All Over? (Part 2)

In Part 1 of his article on GDPR, Simon Tolson explored the key underlying principles about how GDPR affects arbitrators and adjudicators. In Part 2 below, Simon discusses the application of those principles to dealing with personal data.

Categories of personal data that I may process about you

The most common category of personal data that I may process about you is your name and contact details, including where you currently work and (in some instances) your previous places of work.

Other categories of personal data that I may hold and process about you include, for example, your professional qualifications, dates and places of employment, details of your salary and related benefits (where that information was provided in the context of legal proceedings) or your religion (where provided in the context of you giving sworn

In addition to the categories outlined above, I may also process other categories of data that you or others have provided to me, or that I have obtained from publicly available sources in the course of legal proceedings and/or my legal practice.

How I may use your personal data

I may use your personal data for the following purposes:

1. to provide legal services to my clients, including the provision of legal advice and representation in courts, tribunals, adjudications, dispute boards, arbitrations, settlement negotiations and mediations, or when acting as an arbitrator, adjudicator, mediator or dispute board member;
2. to keep accounting records and carry out administration of my practice;
3. to take or defend legal or regulatory proceedings or to exercise a lien;
4. to respond to potential complaints or make complaints;
5. to check for potential conflicts of interest in relation to future potential cases;
6. to promote and market my/firm services;
7. to carry out anti-money laundering and terrorist financing checks;
8. to train other solicitors and when providing work-shadowing opportunities;
9. to respond to requests for references;
10. when procuring goods and services;
11. to publish legal judgments and decisions of courts and tribunals; and
12. as required or permitted by law.

When you have to provide me with your personal data

If I have been instructed by you or on your behalf on a case or if you have asked for a reference, your personal data has to be provided, to enable me to provide you with advice or representation or the reference, and to enable me to comply with my professional obligations, and to keep accounting records. If you refuse to provide personal data in situations where I am required to obtain this data by law or my professional obligations, I may have to refuse your instructions.

The legal bases for processing your personal data

I rely on the following as legal bases for processing your personal data:

1. If you have consented to the processing of your personal data for specific purposes, then I may process your data for those purposes.
2. If you are a client, processing your personal data is necessary for the performance of a contract for legal services or in order to take steps at your request prior to entering into a contract.
3. For categories of personal data that are deemed to be 'sensitive' under the GPDR and related legislation, I process your data only to the extent that you have expressly consented, or to the extent that I am entitled by law to process the data where the processing is necessary for legal proceedings, legal advice, or otherwise for establishing, exercising or defending legal rights.
4. In relation to categories of personal data that are not deemed to be 'sensitive', I rely on my legitimate interests when processing your personal data. These legitimate interests include but are not limited to:
   
   
   1. Contacting you in relation to specific legal proceedings or for marketing purposes;
   2. Providing legal services to my clients, including the provision of legal advice and
   3. representation in courts, tribunals, adjudications, dispute boards, arbitrations, settlement negotiations and mediations, or when acting as an arbitrator, mediator, adjudicator or dispute board member;
   4. Keeping accounting records and carrying out administration of my practice;
   5. Taking or defending legal or regulatory proceedings or to exercise a lien;
   6. Responding to potential complaints or make complaints;
   7. Checking for potential conflicts of interest in relation to future potential cases;
   8. Carrying out anti-money laundering and terrorist financing checks;
   9. Training other part qualified solicitors and when providing work-shadowing opportunities;
   10. Responding to requests for references;
   11. Procuring goods and services; and
   12. Publishing legal judgments and decisions of courts and tribunals.

In certain circumstances processing may be necessary in order that I can comply with a legal obligation to which I am subject in the UK or elsewhere (including carrying out anti-money laundering or terrorist financing checks).

Who will I share your personal data with?

If I am not sitting as arbitrator or adjudicator. Well if you are my client, some of the personal data you provide will be protected by legal professional privilege¹⁴ unless and until the information becomes public. As a solicitor I have an obligation to keep your personal data confidential, except where it otherwise becomes public or is disclosed as part of the case or proceedings.

It may be necessary to share your information with the following:

1. Data processors, such as my staff, IT support staff, email providers, data storage providers, my personal assistant, my personal administrator and accountant;
2. Other legal professionals, including trainees assisting me on a matter;
3. Experts and other witnesses;
4. Prosecution authorities in the UK or otherwise;
5. Courts and tribunals;
6. In the event of complaints, my Partners/Members and staff who deal with complaints, the SRA, and the Legal Ombudsman,
7. Other regulatory authorities,
8. Business associates, professional advisers and trade bodies, e.g. the Law Society and SRA.
9. The intended recipient, where you have asked me to provide a reference, and
10. The general public in relation to the publication of legal judgments and decisions of courts and tribunals.

Have mobility, will travel, thus there will be transfer of your information outside the European Economic Area (EEA)

Here I may say the nature of our/my practice is that I travel extensively including outside the EEA. As such, while I endeavour to keep minimal non-public personal data on my laptop or mobile phone, if your personal data is held on my laptop or mobile phone or in hard copy, your personal data will be transferred outside of the EEA. I take all reasonable measures (including encryption of my laptop and mobile phone) to protect your data.

If you are in a country outside the EEA or if the instructions you provide come from outside the EEA then it is inevitable that information will be transferred to those countries.

Some countries and organisations outside the EEA have been assessed by the European Commission and their data protection laws and procedures found to show adequate protection. The list can be found here. Most do not. If your information has to be transferred outside the EEA, then it may not have the same protections and you may not have the same rights as you would within the EEA.

I may be required to provide your personal data to regulators, such as the Law Society and SRA, the Financial Conduct Authority or the Information Commissioner's Office. In the case of the Information Commissioner's Office (ICO), there is a risk that your personal data may lawfully be disclosed by them for the purpose of any other civil or criminal proceedings, without my consent or yours, which includes privileged information.

The rights of data subjects

The rights of data subjects is one of the central areas in the GDPR.

The right for individuals to have access to personal data which is held about them is one of these rights. The ability of individuals to exercise these rights to obtain copies of their personal data (often referred to as making a data subject access request ("DSAR") verbally or in writing¹⁵)is something which may be either a help or a hindrance to proceedings depending on who you are acting for.

Note - DSAR's lean towards supporting the data subject who is doing the asking!

Note:

• Fees: Organisations will no longer be able to charge the previous £10 fee, which (though minimal) did act as a limited deterrent.
• Unfounded or excessive requests: Where a DSAR is "manifestly unfounded or excessive", the organisation can charge a fee or refuse to respond. The burden is on the organisation to show that the DSAR was manifestly unfounded or excessive in character.
• Time limit for response: An organisation must respond to a DSAR without undue delay and, in any event, within one month of receipt. This is shorter than the current 40-day period that UK organisations have been used to. The one-month period can be extended to three months, taking into account the complexity and number of DSARs, in which case the data subject must beinformed of the extension (including reasons) within one month of receipt of the DSAR.
• Content of response: As well as access to the data subject's personal data, the right of access extends to other information, including: the envisaged storage period for the personal data; the right to request rectification, erasure or restriction of processing; the right to lodge a complaint with the Data Protection Authority; and, if automated decision-making is used, meaningful information on the logic involved.
  
  BUT: Where the data subject has previously provided consent to say a lawyer processing your personal data, you have the right to withdraw this consent at any time, but this will not affect the lawfulness of any processing activity the lawyer carried out prior to you withdrawing your consent. However, where a lawyer also relies on other bases for processing your information, you may not be able to prevent processing of your data.
  
  But when I say lawyer, that does not apply necessarily to a lawyer acting as adjudicator or arbitrator where LPP may not apply and they are not legal advisers with clients.
• Electronic DSARs: It must be possible to make DSARs electronically and, unless otherwise requested by the data subject, the organisation must provide the information in a commonly used electronic form.
  
  Note 'special category data', personaldata may, for example, relate to employees, customers or business contacts. Sensitive data (or "special category data") needs to be handled with even greater care than mere personal data but is probably less likely to be present in standard commercial disputes. Sensitive data includes data revealing racial or ethnic origin or political opinions, or data concerning health, but does not include financial information (e.g. bank account or credit card numbers).
  
  As a solicitor for example it is possible that I may need to provide advice to my clients, or indeed take a view myself in response to a request I have received, as to whether personal data can be withheld on the basis of legal professional privilege or confidentiality. Under the Data Protection Act 2018 exemptions apply to:
  
  
  • information in respect of which a claim of legal professional privilege could be maintained in legal proceedings, or
  • information in respect of which a duty of confidentiality is owed as a professional legal adviser.
  For disclosure in English civil litigation, the main risk, from a data protection perspective, is probably disclosing "irrelevant" or "non-responsive" personal data. That is, personal data that is not clearly caught by the disclosure regime ordered by the court.
  
  This risk can be mitigated by redaction in the same way that "irrelevant" confidential data may be redacted, although this is both difficult and costly. In particular, the definition of personal data means that redacting someone's name is unlikely, of itself, to be sufficient to remove all personal data from any given document.
  
  It is highly likely that the individual can still be identified from other data and/or the context. Redaction has a place, but it is neither a wholesale solution nor required in every instance.

What about compensation claims?

The GDPR sets out a right for individuals to seek compensation for either material or non-material loss which they suffer as a result of infringements by either controllers or processors. This is, of course, not a new concept. It was possible for individuals to raise claims under the Data Protection Act 1998. A recent example of this was the December 2017 decision in the case of Various Claimants v Wm Morrisons Supermarket PLC [2017] EWHC 3113 where 5,518 employees claimed compensation from Morrisons on the basis of the actions of an employee who has posted personal data of around 100,000 of Morrisons employees on the internet.

Whilst it may often difficult for individuals to claim a large amount of compensation for a personal data breach, group actions where a breach has affected a large number of individuals such as the Morrisons case may prove very costly.

It will be impossible for anyone here to have avoided hearing about the General Data Protection Regulation (the GDPR) which came into force on Friday 25 May, especially given the large numbers of emails circulated in advance by organisations wanting to make sure they could still keep in touch!

Parts of the Data Protection Act 2018 also came in force on 25 May. This was grease lightening when you consider that the text of it was only finalised on 21 May and royal assent was only granted on 23 May 2018.

Personal data will generally require to be shared a number of times before, during and after the course of dispute. Examples of this include running traces to obtain up to date contact details for an opposing party, instructing claims consultants and lawyers to prepare papers, sending papers to court for issue etc.

Considering the role of the person with whom personal data will be shared is important as different procedures will need to be applied depending on whether they are classified as a processor or controller. Making sure that appropriate procedures are followed and being clear what will happen to persona data when you share it is important.

Most lawful bases require that processing is 'necessary'. If you can reasonably achieve the same purpose without the processing, you won't have a lawful basis.

You must determine your lawful basis before you begin processing, and you should document it.

Take care to get it right first time - you should not swap to a different lawful basis at a later date without good reason. In particular, you cannot usually swap from consent to a different basis.

You must have a valid lawful basis in order to process personal data.

There are six available lawful bases for processing. No single basis is 'better' or more important than the others – which basis is most appropriate to use will depend on your purpose and relationship with the individual.

Almost any interaction with personal data will amount to processing, including collecting, organising, storing, altering, retrieving, using, and erasing.

Personal data encompasses any information relating to an identified or identifiable natural person (expressly including a name, online identifiers (eg IP addresses) and genetic identity).

Laptops on trains, sending emails to wrong recipient, sloppy passwords and divulging¹⁶, 72 hours report breach to information commissioner.

• a duty on all organisations to report certain types of personal data breach to the relevant supervisory authority. You must do this within 72 hours of becoming aware of the breach, where feasible.
• If the breach is likely to result in a high risk of adversely affecting individuals' rights and freedoms, you must also inform those individuals without undue delay.
• You should ensure you have robust breach detection, investigation and internal reporting procedures in place. This will facilitate decision-making about whether or not you need to notify the relevant supervisory authority and the affected individuals.
• You must also keep a record of any personal data breaches, regardless of whether you are required to notify.

Personal data is therefore not limited only to the identifiers themselves, but also includes almost anything linked to those identifiers. A data controller is the entity which, alone or jointly, determines the purposes and means of processing, and both the client and its lawyer will usually be data controllers.

External lawyers will typically be data controllers: they have their own professional responsibilities (in terms of record keeping, the confidentiality of communications, etc.) and exercise a degree of autonomy (e.g. in determining what information to request from their client and what to process in order to provide legal advice).

The concept of personal data has always been drawn extremely widely under EU data protection laws and this remains the case under the GDPR.

The EU General Data Protection Regulation (universally known as GDPR) has become ubiquitous. Less understood is what GDPR means for disputes and contentious regulatory/enforcement matters. Virtually all evidence, whether in arbitration or litigation relating to investigations carried out by regulators or enforcement authorities, will contain personal data.

'Disclosure' comes in many shapes and sizes. It has nearly as many names: discovery, disclosure, production of documents, inspection and so on. It encompasses not only the specific meaning in English civil litigation under the Civil Procedure Rules, but also whenever documents are collected, reviewed or produced in a legal, (regulatory or enforcement) context. This may be under compulsion or due to a desire to share those documents with another party.

• to the extent the risks exist, they are most acute, when data is being transferred from within the European Economic Area (EEA) to a jurisdiction outside the EEA (most often to the US).
• So-called "e-disclosure" is unlikely to change. The Article 29 Data Protection Working Party (WP29) has not provided any further words of wisdom concerning the difficulties posed by data flows in and (especially) out of the EU in the context of litigation being conducted in common law countries. Litigators will continue to struggle with the conflicts between common law pre-trial discovery and the civil code countries.
• dispute resolution lawyers will have to ensure that not only is their own house in order, but also that of any providers that they engage with in respect of client data. I am thinking in terms of how data is managed, stored, accessed and protected, both whilst it is in use, and after the tasks for which it was collected have been completed. A prudent lawyer and his or her firm will already have stringent processesand procedures in place to look after and work with client data, so they will be less impacted by the changes. Their new focus will be to take responsibility for ensuring that any provider they use to work with the data also has adequate protection processes in place.
• As lawyers for example we must have data protection in mind at all times so that decisions one takes factor it in. For example, in disclosure under the Civil Procedure Rules (CPR) this means: when the client initially gathers documents, whenever a third party is used to assist with the disclosure process, whenever disclosure documents are being transferred, whenever the documents are reviewed, whether it is appropriate to redact documents, right up to decisions about for how long and in what circumstances lawyers should retain documents after a dispute has been resolved.

Erasure

One of the most (in)famous aspects of the GDPR is the Right to Erasure, (aka The Right to be Forgotten). But it's not quite as simple as it first appears.

Article 17 of the GDPR states that data subjects have the right to have their personal data removed from the systems of controllers and processors under a number of circumstances, such as by removing their consent for its processing. It's akin to requesting your neighbour return the lawnmower you lent them. It's yours, and you want it back.

On the face of it, complying with this is a daunting task, and to add to the complexity, there are many cases where conflicting regulations will prevent the processor from complying with the request.

The Requirements

Article 17 of the GDPR, The Right To Erasure, states:

Data Subjects have the right to obtain erasure from the data controller, without undue delay, if one of the following applies:

1. The controller doesn't need the data anymore
2. The subject withdraws consent for the processing with which they previously agreed to (and the controller doesn't need to legally keep it [NB. Many will, e.g. banks, for 7 years, solicitors 12 years plus in some cases.])
3. The subject uses their right to object (Article 21) to the data processing
4. The controller and/or its processor is processing the data unlawfully
5. There is a legal requirement for the data to be erased
6. The data subject was a child at the time of collection (See Article 8 for more details on a child's ability to consent)

If a controller makes the data public, then they are obligated to take reasonable steps to get other processors to erase the data, e.g. A website publishes an untrue story on an individual, and later is required to erase it, and also must request other websites erase their copy of the story.

Exceptions

Data might not have to be erased if any of the following apply:

1. The "right of freedom and expression"
2. The need to adhere to legal compliance, e.g. a bank keeping data for 7 years.
3. Reasons of public interest in the area of public health
4. Scientific, historical research or public interest archiving purposes
5. For supporting legal claims, e.g. PPI offerings.

Out of Scope

Non-electronic documents which are not (to be) filed, (i.e. it's data you can't search for), e.g. a random piece of microfiche, or a paper notepad, are not classed as personal data in the GDPR and are therefore not subject to the right to erasure.

Not Going to Happen

Some personal data sets are impossible (or infeasible) to edit to remove individual records, e.g. a server backup or a piece of microfiche. Whilst these uneditable data sets are in-scope of the erasure Right, themselves they would be out-of-scope for erasure editing procedures due to their immutable nature. If you can destroy the whole microfiche and not worry about losing other data then great. It's the "editing" of microfiche that wouldn't be possible here.

The Real World

Once an organisation understands where all a subject's personal data resides, an assessment must be made of what can be, should be, can't be, and is infeasible to be erased. The exceptions above will commonly apply, such as legal requirements for data retention. But this doesn't mean that the controller should keep the records "live" in an online system. To best protect the personal data it ideally should be archived away to a more protected and locked down system that meets the retention requirements and also goes as far as possible at meeting the data subject's desire to be erased.

Importantly, these exceptions can't be used as an override, e.g. allowing the controller to keep considering the subject as an active customer that they can keep marketing to. The Principles of GDPR should keep the controller focused on best serving the rights of the data subject as much as possible, whilst meeting their wider requirements.

My Advice on erasure

Erasure is an area where there is no black and white on what must be done. Every organisation, every record and every piece of technology used will require a case by case assessment. For example, some processors provide more granular control of deletion of individual records in cold backups. Some provide none.

The key is to focus on what your rationale would be if you were stood in front of the regulator (e.g. ICO in the UK) or a judge in court. Would you be confident that you had a justifiable position on doing the "right thing" by the data subjects, doing the best you could and had given this enough focus and documented thought? Focus on answering this question and you should be in a solid position.

Legal professional privilege

Under paragraph 19 of Part 4 of Schedule 2 to the DPA, subject access rights do not apply to:

Leaving aside the difficulties in applying to information a legal principle which has been developed in relation to documents, a solicitor's file will typically contain much unprivileged information. In Ittihadieh v 5-11 Cheyne Gardens RTM Co Ltd [2018] QB 256, at [102], Lewison LJ said:

If some personal data are covered by legal professional privilege and others are not, the data controller will have to carry out a proportionate search to separate the two.

The firm's obligation of confidentiality

Mere confidentiality is not a complete bar to a subject access request, but the right to access (of X) is qualified if the data is also the personal data of a third party (Y). Under paragraph 16 of Part 3 of Schedule 2 to the DPB, the subject data access provisions:

This exemption (which does not appear to have been directly in issue before the Court of Appeal in either Dawson-Damer or Ittihadieh) is naturally likely to have a more pervasive effect when the solicitor's client (Y) is an individual, rather than a corporation. In Ittihadieh, at [101], Lewison LJ observed that:

Collateral purpose

The Court of Appeal in both Dawson-Damer (at [105] to [114]) and Ittihadieh (at [86] to [89]) rejected the submission that a subject access request was invalid if it was made with a collateral purpose, such as litigation.

Disproportionality

The judgments in Dawson-Damer and Ittihadieh are not encouraging for solicitors seeking to reject a subject access request outright on the basis that it is disproportionate, but they both confirm that principles of proportionality apply implicitly to the burdens of search, analysis and production which are imposed by a request (Dawson-Damer, at [74] to [79]; Ittihadieh, at [95] to [103]).

In Gaines-Cooper v Commissioners for HMRC [2017] EWHC 868 (Ch) HHJ Jarman QC held that HMRC, which had made significant efforts to comply with a subject access request, had done enough to comply with its obligations, even though significant quantities of potentially relevant documentation remained unexamined.

Abuse of process/abuse of rights

In Dawson-Damer, at [109], the Court of Appeal raised the possibility that an application to enforce rights of access might in some circumstances amount to an abuse of process, and this possibility was confirmed in Ittadieh, at [88]. The Court of Appeal suggested in the latter case that there was not much difference between the domestic concept of abuse of process and the EU doctrine of "abuse of rights".

The Court's discretion

In Ittihadieh, at [104] to [110], the Court of Appeal considered the nature of the Court's discretion on applications by data subjects to enforce their access rights. It held that if a data controller had failed to conduct a proportionate search in response to a valid request then, absent other material factors, the Court's discretion should usually be exercised in favour of the data subject.

However, the Court of Appeal also identified a number of factors which are of potential relevance to the Court's exercise of its discretion, including:

• whether there is a more appropriate route to obtaining the requested information
• the nature and gravity of the data controller's breach
• whether there is a legitimate reason for making the access request
• whether an abuse of rights is involved
• whether the application is procedurally abusive
• whether the real quest is for documents, rather than personal data
• whether the personal data is of no real value to the data subject
• whether the data subject has already received the data

The Court of Appeal stated that this list was not intended to be prescriptive, but it is likely to be the subject of close examination on many future applications.

One suspects that (as may already be detected in the existing case-law) the courts' application of the relevant principles will be significantly influenced by their perception of the virtues or demerits of the individual litigants involved.

Conclusion.

Following the implementation of the GDPR, subject access requests of solicitors are likely to become more common. The requests can raise a whole host of difficult issues, which can be time-consuming and costly to resolve (and not billable). Further, the proper response to the requests is often counter-intuitive.

On the other side of the coin, solicitors and the claims community advising individuals in relation to potential or current proceedings should consider whether or not to advise their client to make a subject access request. Such a request may succeed in eliciting sought after information or documentation, where an application for pre-action or third-party disclosure would fail.

I leave with a joke. There is a joke circulating on the Internet, based on the classic song, "Santa Claus is Comin' to Town".

He's making a list.

He's checking it twice.

He's gonna find out who's naughty or nice.

Santa Claus is in contravention of Article 4 of the General Data Protection Regulation.

Ah yes - the cruelty of GDPR – Christmas is cancelled!

Now some common sense please.

Footnotes

14. This exemption pursuant to Article 23 and (Schedule 2 para 19) of DPA18 applies and if you process personal data: to which a claim to legal professional privilege could be maintained in legal proceedings; or in respect of which a duty of confidentiality is owed by a professional legal adviser to his client. It exempts a solicitor or barrister from the GDPR's provisions on: the right to be informed; the right of access; and all the principles.

15. You have one month to respond to a request. You cannot charge a fee to deal with a request in most circumstances. Individuals have the right to obtain the following from you: confirmation that you are processing their personal data; a copy of their personal data; and other supplementary information – this largely corresponds to the information that you should provide in a privacy notice (see 'Supplementary information' below).

16. A personal data breach means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data. This includes breaches that are the result of both accidental and deliberate causes. It also means that a breach is more than just about losing personal data.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.