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Expert: UK would break its own rules with web-snoop law

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The UK government will have to create a new exemption to the rules for processing sensitive personal data in order to facilitate any new "fast-track mechanism" for data-sharing by its departments and public bodies, an expert has said.

However, data protection law specialist Kathryn Wynn of Pinsent Masons, the law firm behind Out-Law.com, said that even with such an exemption the bodies may still be find it difficult to justify sharing individuals' sensitive personal details with each other without having to inform those individuals about the activity.

Earlier this week the Guardian reported that Cabinet Office Minister Francis Maude will next month unveil plans for a new law that would provide government departments and public sector organisations with a "fast-track mechanism" to use personal data collected by other departments or public bodies for purposes different to originally intended.

The scheme could involve sensitive personal data collected by doctors or the police being made available for use by other bodies without individuals' "consent or knowledge", the paper's report said.

Under existing data-protection legislation, special rules are set out to govern the processing of sensitive personal data, such as information relating to medical records or information about suspected or convicted criminals.

Wynn said that the government risks "cutting across" the existing rules unless the new law is carefully drafted and contains "robust" privacy safeguards.

Under the Data Protection Act (DPA), personal data must be processed fairly and lawfully. Organisations are required to satisfy one of six lawful processing conditions – obtaining an individual's consent is one condition that meets that requirement.

However, consent is not required if "the processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject," according to the 'legitimate interests' condition – one of the other lawful conditions set out in the DPA.

"At the moment, if an organisation wishes to share sensitive personal data, it must satisfy the first data protection principle," Wynn said. "The data sharers would be required to ensure processing is fair and lawful and that individuals have been issued with a fair processing notice.

"The data-sharing bodies may also be able to rely on the 'legitimate interests' justification for processing data without consent provided that they have made an assessment to ensure that the data sharing will not be prejudicial to the individuals," she said.

"The bodies would also have to ensure that one of the grounds for processing sensitive personal data has been satisfied – this is fairly narrow so the only condition that an organisation would be able to rely on for general data sharing is obtaining the individual’s explicit consent. As the requirements to obtain explicit consent can be tricky from an administrative/logistical perspective, an exemption or derogation from having to obtain explicit consent in order to process sensitive personal data would facilitate data sharing," Wynn said.

"However, it would be hard for the government to justify an exemption from the fair processing notice requirements – ie, requiring the data-sharing bodies to tell individuals about the nature and extent of the data sharing – unless to do so would be prejudicial to the purposes of obtaining that data sharing," she said. "Such an example may be where tax officers are investigating individuals for benefit fraud and are perhaps looking to obtain data about those people from other government departments, although the DPA already an contains exemption that deals with such a scenario.

"There should be no reason why participating bodies should not tell individuals about data sharing unless such an exemption applies," she said.

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