 United Kingdom of Great Britain and Northern Ireland |
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| Territorial extent | United Kingdom of Great Britain and Northern Ireland |
|---|---|
| Dates | |
| Commencement | March 2000 |
| Other legislation | |
| Repealing legislation | Data Protection Act 1984 |
| Status: Current legislation | |
| Official text of the Data Protection Act 1998 as in force today (including any amendments) within the United Kingdom, from the UK Statute Law Database | |
The Data Protection Act 1998 (DPA) is a United Kingdom Act of Parliament which defines UK law on the processing of data on identifiable living people. It is the main piece of legislation that governs the protection of personal data in the UK. Although the Act itself does not mention privacy, it was enacted to bring UK law into line with the EU data protection directive of 1995 which required Member States to protect people's fundamental rights and freedoms and in particular their right to privacy with respect to the processing of personal data. In practice it provides a way for individuals to control information about themselves. Most of the Act does not apply to domestic use, for example keeping a personal address book. Anyone holding personal data for other purposes is legally obliged to comply with this Act, subject to some exemptions. The Act defines eight data protection principles. It also requires companies and individuals to keep personal information to themselves.
The 1998 Act replaced and consolidated earlier legislation such as the Data Protection Act 1984 and the Access to Personal Files Act 1987. At the same time it aimed to implement the European Data Protection Directive. In some aspects, notably electronic communication and marketing, it has been refined by subsequent legislation for legal reasons. The Privacy and Electronic Communications (EC Directive) Regulations 2003 altered the consent requirement for most electronic marketing to "positive consent" such as an opt in box. Exemptions remain for the marketing of "similar products and services" to existing customers and enquirers, which can still be permissioned on an opt out basis.
The Jersey data protection law was modeled on the UK law.
The Act covers any data about a living and identifiable individual. Anonymised or aggregated data is not regulated by the Act, providing the anonymisation or aggregation has not been done in a reversible way. Individuals can be identified by various means including their name and address, telephone number or Email address. The Act applies only to data which is held, or intended to be held, on computers ('equipment operating automatically in response to instructions given for that purpose'), or held in a 'relevant filing system'.
In some cases even a paper address book can be classified as a 'relevant filing system', for example diaries used to support commercial activities such as a salesperson's diary.
The Freedom of Information Act 2000 modified the act for public bodies and authorities, and the Durant case modified the interpretation of the act by providing case law and precedent.
The Data Protection Act creates rights for those who have their data stored, and responsibilities for those who store, process or The person who has their data processed has the right to
Personal data should only be processed fairly and lawfully. In order for data to be classed as 'fairly processed', at least one of these six conditions must be applicable to that data (Schedule 2).
Except under the below mentioned exceptions, the individual needs to consent to the collection of their personal information and its use in the purpose(s) in question. The European Data Protection Directive defines consent as “…any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed”, meaning the individual may signify agreement other than in writing. However, non-communication should not be interpreted as consent.
Additionally, consent should be appropriate to the age and capacity of the individual and other circumstances of the case. E.g. if an organisation "intends to continue to hold or use personal data after the relationship with the individual ends, then the consent should cover this." And even when consent is given, it shouldn't be assumed to last forever. Although in most cases consent lasts for as long as the personal data needs to be processed, individuals may be able to withdraw their consent, depending on the nature of the consent and the circumstances in which the personal information is being collected and used.
The Data Protection Act also specifies that sensitive personal data must be processed according to a stricter set of conditions, in particular any consent must be explicit.
The Act is structured such that all processing of personal data is covered by the act, while providing a number of exceptions in Part IV. Notable exceptions are:
The Act details a number of civil and criminal offences for which data controllers may be liable if a data controller has failed to gain appropriate consent from a data subject. However 'consent' is not specifically defined in the Act; consent is therefore a common law matter.
The UK Data Protection Act is a large Act that has a reputation for complexity. While the basic principles are honoured for protecting privacy, interpreting the act is not always simple. Many companies, organisations and individuals seem very unsure of the aims, content and principles of the DPA. Some hide behind the Act and refuse to provide even very basic, publicly available material quoting the Act as a restriction. The act also impacts on the way in which organisations conduct business in terms of who can be contacted for marketing purposes, not only by telephone and direct mail, but also electronically and has led to the development of permission based marketing strategies.
The definition of personal data is data which relates to a living individual who can be identified
Sensitive personal data concerns the subject's race, ethnicity, politics, religion, trade union status, health, sex life or criminal record.
Personal data which is normally held for under 40 days may be legitimately denied in subject access requests under the Act. This is a consequence of the time limit data controllers must meet in making their response. If the data has been deleted by the normal procedures of the business by the time the data controller responds to a request, that data cannot be supplied. For data such as closed-circuit television images which are routinely overwritten, it may be impossible for a subject to exercise their data access rights.
Compliance with the Act is regulated and enforced by an independent authority, the Information Commissioner's Office, which maintains guidance relating to the Act. Full details can be found at http://www.ico.gov.uk
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