Trends in data protection – The ICO’s view

A summary of the key issues arising from Elizabeth Denham’s key note speech to the 2020 Data Protection Practitioners’ Conference

On 8 October 2020 Elizabeth Denham, the UK Information Commissioner, delivered a keynote speech at the Data Protection Practitioners’ Conference which was held, like many conferences during 2020, remotely.

With the theme of her speech being how the past informs the present, Ms Denham highlighted the way in which the Covid-19 pandemic has changed society globally by accelerating the uptake of digital services that would, absent the pandemic, have taken years; from helping us to keep in touch with friends and family and continue to attend health appointments to enabling staff to work on sensitive data from home and to contact tracing.

The acceleration has inevitably raised questions leading to the data protection community having to work hard to support their businesses and organisations to operate effectively in rapidly evolving situations. However, Ms Denham highlighted the fact that whilst the pandemic has brought new questions (such as employers having to temperature check employees as they arrive for work, are algorithms a fair way to decide A-level exam results), the “interesting point here is that... the answers my office has provided will have been pretty recognisable to all of you data protection experts. The same themes come up.”: the themes of transparency regarding the use of people’s data, fair treatment of people and accountability.

Ms Denham also highlighted how, the pandemic had brought increased pragmatism as people’s attitudes changed in response to the threat to their health and she predicted how, whilst she does not expect society’s view to return to that immediately prior to 2020, she does expect that society’s attitude will shift once more as people reassess where their prioritises lie and “what balances there needs to be around liberty, privacy, innovation and prosperity”.

The audience was reminded that data protection is a principles-based law (based on questions of what is fair, reasonable and proportionate) and “participation by the public in new business processes and innovation only happens at scale and at pace when it has the public’s trust and confidence”. An organisation that only has a functional based relationship with the public, she predicts, needs to hope that functionality does not fail as there will be a backlash.

She closed her speech looking ahead as to how the data protection community might prepare for an uncertain future. She reminded her audience that the ICO’s role is not to make or shape laws – that is the role of the UK government who, she says, have committed to high data protection standards post-Brexit equal to those of the EU as it recognises the value that data protection laws have as an enabler of innovation. Ms Denham emphasised that the ICO’s focus is to protect individuals by supporting organisations to get their compliance with the law right noting that she sees it as a two-way conversation which should assist organisations. In closing, she offered her audience the following advice: “I don’t have a crystal ball. But what I can say with confidence is that accountability is a sail that will never fail you, both domestically and internationally... if history has taught us anything, it’s that old maxim that trust is hard won, and easily lost.”