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Data Protection Bill (HL Bill 66)

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50 Form of provision of information etc

(1) The controller must take reasonable steps to ensure that any information that
is required by this Chapter to be provided to the data subject is provided in a
concise, intelligible and easily accessible form, using clear and plain language.

(2) 5Subject to subsection (3), the information may be provided in any form,
including electronic form.

(3) Where information is provided in response to a request by the data subject
under section 43, 44, 45 or 48, the controller must provide the information in
the same form as the request where it is practicable to do so.

(4) 10Where the controller has reasonable doubts about the identity of an individual
making a request under section 43, 44 or 45, the controller may—

(a) request the provision of additional information to enable the controller
to confirm the identity, and

(b) delay dealing with the request until the identity is confirmed.

(5) 15Subject to section 51, any information that is required by this Chapter to be
provided to the data subject must be provided free of charge.

(6) The controller must facilitate the exercise of the rights of the data subject under
sections 43 to 48.

51 Manifestly unfounded or excessive requests by the data subject

(1) 20Where a request from a data subject under section 43, 44 or 45 is manifestly
unfounded or excessive, the controller may—

(a) charge a reasonable fee for dealing with the request, or

(b) refuse to act on the request.

(2) An example of a request that may be excessive is one that merely repeats the
25substance of previous requests.

(3) In any proceedings where there is an issue as to whether a request under
section 43, 44 or 45 is manifestly unfounded or excessive, it is for the controller
to show that it is.

(4) The Secretary of State may by regulations specify limits on the fees that a
30controller may charge in accordance with subsection (1)(a).

(5) Regulations under subsection (4) are subject to the negative resolution
procedure.

52 Meaning of “applicable time period”

(1) This section defines “the applicable time period” for the purposes of sections
3543(3)(b) and 46(2)(b).

(2) “The applicable time period” means the period of one month, or such longer
period as may be specified in regulations, beginning with the relevant day.

(3) “The relevant day” means the latest of the following days—

(a) the day on which the controller receives the request in question;

(b) 40the day on which the controller receives the information (if any)
requested in connection with a request under section 50(4);

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(c) the day on which the fee (if any) charged in connection with the request
under section 51 is paid.

(4) The power to make regulations under subsection (2) is exercisable by the
Secretary of State.

(5) 5Regulations under subsection (2) may not specify a period which is longer than
three months.

(6) Regulations under subsection (2) are subject to the negative resolution
procedure.

CHAPTER 4 10 Controller and processor

Overview and scope

53 Overview and scope

(1) This Chapter—

(a) sets out the general obligations of controllers and processors (see
15sections 54 to 63);

(b) sets out specific obligations of controllers and processors with respect
to security (see section 64);

(c) sets out specific obligations of controllers and processors with respect
to personal data breaches (see sections 65 and 66);

(d) 20makes provision for the designation, position and tasks of data
protection officers (see sections 67 to 69).

(2) This Chapter applies only in relation to the processing of personal data for a
law enforcement purpose.

(3) Where a controller is required by any provision of this Chapter to implement
25appropriate technical and organisational measures, the controller must (in
deciding what measures are appropriate) take into account—

(a) the latest developments in technology,

(b) the cost of implementation,

(c) the nature, scope, context and purposes of processing, and

(d) 30the risks for the rights and freedoms of individuals arising from the
processing.

General obligations

54 General obligations of the controller

(1) Each controller must implement appropriate technical and organisational
35measures to ensure, and to be able to demonstrate, that the processing of
personal data complies with the requirements of this Part.

(2) Where proportionate in relation to the processing, the measures implemented
to comply with the duty under subsection (1) must include appropriate data
protection policies.

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(3) The technical and organisational measures implemented under subsection (1)
must be reviewed and updated where necessary.

55 Data protection by design and default

(1) Each controller must implement appropriate technical and organisational
5measures which are designed—

(a) to implement the data protection principles in an effective manner, and

(b) to integrate into the processing itself the safeguards necessary for that
purpose.

(2) The duty under subsection (1) applies both at the time of the determination of
10the means of processing the data and at the time of the processing itself.

(3) Each controller must implement appropriate technical and organisational
measures for ensuring that, by default, only personal data which is necessary
for each specific purpose of the processing is processed.

(4) The duty under subsection (3) applies to—

(a) 15the amount of personal data collected,

(b) the extent of its processing,

(c) the period of its storage, and

(d) its accessibility.

(5) In particular, the measures implemented to comply with the duty under
20subsection (3) must ensure that, by default, personal data is not made
accessible to an indefinite number of people without an individual’s
intervention.

56 Joint controllers

(1) Where two or more competent authorities jointly determine the purposes and
25means of processing personal data, they are joint controllers for the purposes
of this Part.

(2) Joint controllers must, in a transparent manner, determine their respective
responsibilities for compliance with this Part by means of an arrangement
between them, except to the extent that those responsibilities are determined
30under or by virtue of an enactment.

(3) The arrangement must designate the controller which is to be the contact point
for data subjects.

57 Processors

(1) This section applies to the use by a controller of a processor to carry out
35processing of personal data on behalf of the controller.

(2) The controller may use only a processor who provides guarantees to
implement appropriate technical and organisational measures that are
sufficient to secure that the processing will—

(a) meet the requirements of this Part, and

(b) 40ensure the protection of the rights of the data subject.

(3)

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The processor used by the controller may not engage another processor (“a
sub-processor”) without the prior written authorisation of the controller,
which may be specific or general.

(4) Where the controller gives a general written authorisation to a processor, the
5processor must inform the controller if the processor proposes to add to the
number of sub-processors engaged by it or to replace any of them (so that the
controller has the opportunity to object to the proposal).

(5) The processing by the processor must be governed by a contract in writing
between the controller and the processor setting out the following—

(a) 10the subject-matter and duration of the processing;

(b) the nature and purpose of the processing;

(c) the type of personal data and categories of data subjects involved;

(d) the obligations and rights of the controller and processor.

(6) The contract must, in particular, provide that the processor must—

(a) 15act only on instructions from the controller,

(b) ensure that the persons authorised to process personal data are subject
to an appropriate duty of confidentiality,

(c) assist the controller by any appropriate means to ensure compliance
with the rights of the data subject under this Part,

(d) 20at the end of the provision of services by the processor to the
controller—

(i) either delete or return to the controller (at the choice of the
controller) the personal data to which the services relate, and

(ii) delete copies of the personal data unless subject to a legal
25obligation to store the copies,

(e) make available to the controller all information necessary to
demonstrate compliance with this section, and

(f) comply with the requirements of this section for engaging sub-
processors.

(7) 30The terms included in the contract in accordance with subsection (6)(a) must
provide that the processor may transfer personal data to a third country or
international organisation only if instructed by the controller to make the
particular transfer.

(8) If a processor determines, in breach of this Part, the purposes and means of
35processing, the processor is to be treated for the purposes of this Part as a
controller in respect of that processing.

58 Processing under the authority of the controller or processor

A processor, and any person acting under the authority of a controller or
processor, who has access to personal data may not process the data except—

(a) 40on instructions from the controller, or

(b) to comply with a legal obligation.

59 Records of processing activities

(1) Each controller must maintain a record of all categories of processing activities
for which the controller is responsible.

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(2) The controller’s record must contain the following information—

(a) the name and contact details of the controller;

(b) where applicable, the name and contact details of the joint controller;

(c) where applicable, the name and contact details of the data protection
5officer;

(d) the purposes of the processing;

(e) the categories of recipients to whom personal data has been or will be
disclosed (including recipients in third countries or international
organisations);

(f) 10a description of the categories of—

(i) data subject, and

(ii) personal data;

(g) where applicable, details of the use of profiling;

(h) where applicable, the categories of transfers of personal data to a third
15country or an international organisation;

(i) an indication of the legal basis for the processing operations, including
transfers, for which the personal data is intended;

(j) where possible, the envisaged time limits for erasure of the different
categories of personal data;

(k) 20where possible, a general description of the technical and
organisational security measures referred to in section 64.

(3) Each processor must maintain a record of all categories of processing activities
carried out on behalf of a controller.

(4) The processor’s record must contain the following information—

(a) 25the name and contact details of the processor and of any other
processors engaged by the processor in accordance with section 57(3);

(b) the name and contact details of the controller on behalf of which the
processor is acting;

(c) where applicable, the name and contact details of the data protection
30officer;

(d) the categories of processing carried out on behalf of the controller;

(e) where applicable, details of transfers of personal data to a third country
or an international organisation where explicitly instructed to do so by
the controller, including the identification of that third country or
35international organisation;

(f) where possible, a general description of the technical and
organisational security measures referred to in section 64.

(5) The controller and the processor must make the records kept under this section
available to the Commissioner on request.

60 40Logging

(1) A controller (or, where personal data is processed on behalf of the controller by
a processor, the processor) must keep logs for at least the following processing
operations in automated processing systems—

(a) collection;

(b) 45alteration;

(c) consultation;

(d) disclosure (including transfers);

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(e) combination;

(f) erasure.

(2) The logs of consultation must make it possible to establish—

(a) the justification for, and date and time of, the consultation, and

(b) 5so far as possible, the identity of the person who consulted the data.

(3) The logs of disclosure must make it possible to establish—

(a) the justification for, and date and time of, the disclosure, and

(b) so far as possible—

(i) the identity of the person who disclosed the data, and

(ii) 10the identity of the recipients of the data.

(4) The logs kept under subsection (1) may be used only for one or more of the
following purposes—

(a) to verify the lawfulness of processing;

(b) to assist with self-monitoring by the controller or (as the case may be)
15the processor, including the conduct of internal disciplinary
proceedings;

(c) to ensure the integrity and security of personal data;

(d) the purposes of criminal proceedings.

(5) The controller or (as the case may be) the processor must make the logs
20available to the Commissioner on request.

61 Co-operation with the Commissioner

Each controller and each processor must co-operate, on request, with the
Commissioner in the performance of the Commissioner’s tasks.

62 Data protection impact assessment

(1) 25Where a type of processing is likely to result in a high risk to the rights and
freedoms of individuals, the controller must, prior to the processing, carry out
a data protection impact assessment.

(2) A data protection impact assessment is an assessment of the impact of the
envisaged processing operations on the protection of personal data.

(3) 30A data protection impact assessment must include the following—

(a) a general description of the envisaged processing operations;

(b) an assessment of the risks to the rights and freedoms of data subjects;

(c) the measures envisaged to address those risks;

(d) safeguards, security measures and mechanisms to ensure the
35protection of personal data and to demonstrate compliance with this
Part, taking into account the rights and legitimate interests of the data
subjects and other persons concerned.

(4) In deciding whether a type of processing is likely to result in a high risk to the
rights and freedoms of individuals, the controller must take into account the
40nature, scope, context and purposes of the processing.

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63 Prior consultation with the Commissioner

(1) This section applies where a controller intends to create a filing system and
process personal data forming part of it.

(2) The controller must consult the Commissioner prior to the processing if a data
5protection impact assessment prepared under section 62 indicates that the
processing of the data would result in a high risk to the rights and freedoms of
individuals (in the absence of measures to mitigate the risk).

(3) Where the controller is required to consult the Commissioner under subsection
(2), the controller must give the Commissioner—

(a) 10the data protection impact assessment prepared under section 62, and

(b) any other information requested by the Commissioner to enable the
Commissioner to make an assessment of the compliance of the
processing with the requirements of this Part.

(4) Where the Commissioner is of the opinion that the intended processing
15referred to in subsection (1) would infringe any provision of this Part, the
Commissioner must provide written advice to the controller and, where the
controller is using a processor, to the processor.

(5) The written advice must be provided before the end of the period of 6 weeks
beginning with receipt of the request for consultation by the controller or the
20processor.

(6) The Commissioner may extend the period of 6 weeks by a further period of one
month, taking into account the complexity of the intended processing.

(7) If the Commissioner extends the period of 6 weeks, the Commissioner must—

(a) inform the controller and, where applicable, the processor of any such
25extension before the end of the period of one month beginning with
receipt of the request for consultation, and

(b) provide reasons for the delay.

Obligations relating to security

64 Security of processing

(1) 30Each controller and each processor must implement appropriate technical and
organisational measures to ensure a level of security appropriate to the risks
arising from the processing of personal data.

(2) In the case of automated processing, each controller and each processor must,
following an evaluation of the risks, implement measures designed to—

(a) 35prevent unauthorised processing or unauthorised interference with the
systems used in connection with it,

(b) ensure that it is possible to establish the precise details of any
processing that takes place,

(c) ensure that any systems used in connection with the processing
40function properly and may, in the case of interruption, be restored, and

(d) ensure that stored personal data cannot be corrupted if a system used
in connection with the processing malfunctions.

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65 Notification of a personal data breach to the Commissioner

(1) If a controller becomes aware of a personal data breach in relation to personal
data for which the controller is responsible, the controller must notify the
breach to the Commissioner—

(a) 5without undue delay, and

(b) where feasible, not later than 72 hours after becoming aware of it.

(2) Subsection (1) does not apply if the personal data breach is unlikely to result in
a risk to the rights and freedoms of individuals.

(3) Where the notification to the Commissioner is not made within 72 hours, the
10notification must be accompanied by reasons for the delay.

(4) Subject to subsection (5), the notification must include—

(a) a description of the nature of the personal data breach including, where
possible, the categories and approximate number of data subjects
concerned and the categories and approximate number of personal
15data records concerned;

(b) the name and contact details of the data protection officer or other
contact point from whom more information can be obtained;

(c) a description of the likely consequences of the personal data breach;

(d) a description of the measures taken or proposed to be taken by the
20controller to address the personal data breach, including, where
appropriate, measures to mitigate its possible adverse effects.

(5) Where and to the extent that it is not possible to provide all the information
mentioned in subsection (4) at the same time, the information may be provided
in phases without undue further delay.

(6) 25The controller must record the following information in relation to a personal
data breach—

(a) the facts relating to the breach,

(b) its effects, and

(c) the remedial action taken.

(7) 30The information mentioned in subsection (6) must be recorded in such a way
as to enable the Commissioner to verify compliance with this section.

(8) Where a personal data breach involves personal data that has been transmitted
by or to a person who is a controller under the law of another member State,
the information mentioned in subsection (6) must be communicated to that
35person without undue delay.

(9) If a processor becomes aware of a personal data breach (in relation to personal
data processed by the processor), the processor must notify the controller
without undue delay.

Obligations relating to personal data breaches

66 40Communication of a personal data breach to the data subject

(1) Where a personal data breach is likely to result in a high risk to the rights and
freedoms of individuals, the controller must inform the data subject of the
breach without undue delay.

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(2) The information given to the data subject must include the following—

(a) a description of the nature of the breach;

(b) the name and contact details of the data protection officer or other
contact point from whom more information can be obtained;

(c) 5a description of the likely consequences of the personal data breach;

(d) a description of the measures taken or proposed to be taken by the
controller to address the personal data breach, including, where
appropriate, measures to mitigate its possible adverse effects.

(3) The duty under subsection (1) does not apply where—

(a) 10the controller has implemented appropriate technological and
organisational protection measures which were applied to the personal
data affected by the breach,

(b) the controller has taken subsequent measures which ensure that the
high risk to the rights and freedoms of data subjects referred to in
15subsection (1) is no longer likely to materialise, or

(c) it would involve a disproportionate effort.

(4) An example of a case which may fall within subsection (3)(a) is where
measures that render personal data unintelligible to any person not authorised
to access the data have been applied, such as encryption.

(5) 20In a case falling within subsection (3)(c) (but not within subsection (3)(a) or (b)),
the information mentioned in subsection (2) must be made available to the data
subject in another equally effective way, for example, by means of a public
communication.

(6) Where the controller has not informed the data subject of the breach the
25Commissioner, on being notified under section 65 and after considering the
likelihood of the breach resulting in a high risk, may—

(a) require the controller to notify the data subject of the breach, or

(b) decide that the controller is not required to do so because any of
paragraphs (a) to (c) of subsection (3) applies.

(7) 30The controller may restrict, wholly or partly, the provision of information to
the data subject under subsection (1) to the extent that and for so long as the
restriction is, having regard to the fundamental rights and legitimate interests
of the data subject, a necessary and proportionate measure to—

(a) avoid obstructing an official or legal inquiry, investigation or
35procedure;

(b) avoid prejudicing the prevention, detection, investigation or
prosecution of criminal offences or the execution of criminal penalties;

(c) protect public security;

(d) protect national security;

(e) 40protect the rights and freedoms of others.

(8) Subsection (6) does not apply where the controller’s decision not to inform the
data subject of the breach was made in reliance on subsection (7).

(9) The duties in section 50(1) and (2) apply in relation to information that the
controller is required to provide to the data subject under this section as they
45apply in relation to information that the controller is required to provide to the
data subject under Chapter 3.

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Data protection officers

67 Designation of a data protection officer

(1) The controller must designate a data protection officer, unless the controller is
a court, or other judicial authority, acting in its judicial capacity.

(2) 5When designating a data protection officer, the controller must have regard to
the professional qualities of the proposed officer, in particular—

(a) the proposed officer’s expert knowledge of data protection law and
practice, and

(b) the ability of the proposed officer to perform the tasks mentioned in
10section 69.

(3) The same person may be designated as a data protection officer by several
controllers, taking account of their organisational structure and size.

(4) The controller must publish the contact details of the data protection officer
and communicate these to the Commissioner.

68 15Position of data protection officer

(1) The controller must ensure that the data protection officer is involved, properly
and in a timely manner, in all issues which relate to the protection of personal
data.

(2) The controller must provide the data protection officer with the necessary
20resources and access to personal data and processing operations to enable the
data protection officer to—

(a) perform the tasks mentioned in section 69, and

(b) maintain his or her expert knowledge of data protection law and
practice.

(3) 25The controller—

(a) must ensure that the data protection officer does not receive any
instructions regarding the performance of the tasks mentioned in
section 69;

(b) must ensure that the data protection officer does not perform a task or
30fulfil a duty other than those mentioned in this Part where such task or
duty would result in a conflict of interests;

(c) must not dismiss or penalise the data protection officer for performing
the tasks mentioned in section 69.

(4) A data subject may contact the data protection officer with regard to all issues
35relating to—

(a) the processing of that data subject’s personal data, or

(b) the exercise of that data subject’s rights under this Part.

(5) The data protection officer, in the performance of this role, must report to the
highest management level of the controller.

69 40Tasks of data protection officer

(1) The controller must entrust the data protection officer with at least the
following tasks—