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Data Protection Act 2018, CHAPTER 2 is up to date with all changes known to be in force on or before 11 August 2022. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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CHAPTER 2U.K.[F1 The UK GDPR]

Meaning of certain terms used in the [F2UK GDPR] U.K.

6Meaning of “controller”U.K.

(1)The definition of “controller” in Article 4(7) of the [F3UK GDPR] has effect subject to—

(a)subsection (2),

(b)section 209, and

(c)section 210.

(2)For the purposes of the [F4UK GDPR], where personal data is processed only—

(a)for purposes for which it is required by an enactment to be processed, and

(b)by means by which it is required by an enactment to be processed,

the person on whom the obligation to process the data is imposed by the enactment (or, if different, one of the enactments) is the controller.

7Meaning of “public authority” and “public body”U.K.

(1)For the purposes of the [F5UK GDPR], the following (and only the following) are “public authorities” and “public bodies” F6...—

(a)a public authority as defined by the Freedom of Information Act 2000,

(b)a Scottish public authority as defined by the Freedom of Information (Scotland) Act 2002 (asp 13), and

(c)an authority or body specified or described by the Secretary of State in regulations,

subject to subsections (2), (3) and (4).

(2)An authority or body that falls within subsection (1) is only a “public authority” or “public body” for the purposes of the [F7UK GDPR] when performing a task carried out in the public interest or in the exercise of official authority vested in it.

(3)The references in subsection (1)(a) and (b) to public authorities and Scottish public authorities as defined by the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002 (asp 13) do not include any of the following that fall within those definitions—

(a)a parish council in England;

(b)a community council in Wales;

(c)a community council in Scotland;

(d)a parish meeting constituted under section 13 of the Local Government Act 1972;

(e)a community meeting constituted under section 27 of that Act;

(f)charter trustees constituted—

(i)under section 246 of that Act,

(ii)under Part 1 of the Local Government and Public Involvement in Health Act 2007, or

(iii)by the Charter Trustees Regulations 1996 (S.I. 1996/263).

(4)The Secretary of State may by regulations provide that a person specified or described in the regulations that is a public authority described in subsection (1)(a) or (b) is not a “public authority” or “public body” for the purposes of the [F8UK GDPR].

(5)Regulations under this section are subject to the affirmative resolution procedure.

Lawfulness of processingU.K.

8Lawfulness of processing: public interest etcU.K.

In Article 6(1) of the [F9UK GDPR] (lawfulness of processing), the reference in point (e) to processing of personal data that is necessary for the performance of a task carried out in the public interest or in the exercise of the controller's official authority includes processing of personal data that is necessary for—

(a)the administration of justice,

(b)the exercise of a function of either House of Parliament,

(c)the exercise of a function conferred on a person by an enactment or rule of law,

(d)the exercise of a function of the Crown, a Minister of the Crown or a government department, or

(e)an activity that supports or promotes democratic engagement.

F109Child's consent in relation to information society servicesU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Special categories of personal dataU.K.

10Special categories of personal data and criminal convictions etc dataU.K.

(1)Subsections (2) and (3) make provision about the processing of personal data described in Article 9(1) of the [F11UK GDPR] (prohibition on processing of special categories of personal data) in reliance on an exception in one of the following points of Article 9(2)—

(a)point (b) (employment, social security and social protection);

(b)point (g) (substantial public interest);

(c)point (h) (health and social care);

(d)point (i) (public health);

(e)point (j) (archiving, research and statistics).

(2)The processing meets the requirement in point (b), (h), (i) or (j) of Article 9(2) of the [F12UK GDPR] for authorisation by, or a basis in, the law of the United Kingdom or a part of the United Kingdom only if it meets a condition in Part 1 of Schedule 1.

(3)The processing meets the requirement in point (g) of Article 9(2) of the [F13UK GDPR] for a basis in the law of the United Kingdom or a part of the United Kingdom only if it meets a condition in Part 2 of Schedule 1.

(4)Subsection (5) makes provision about the processing of personal data relating to criminal convictions and offences or related security measures that is not carried out under the control of official authority.

(5)The processing meets the requirement in Article [F1410(1) of the UK GDPR] for authorisation by the law of the United Kingdom or a part of the United Kingdom only if it meets a condition in Part 1, 2 or 3 of Schedule 1.

(6)The Secretary of State may by regulations—

(a)amend Schedule 1—

(i)by adding or varying conditions or safeguards, and

(ii)by omitting conditions or safeguards added by regulations under this section, and

(b)consequentially amend this section.

(7)Regulations under this section are subject to the affirmative resolution procedure.

11Special categories of personal data etc: supplementaryU.K.

(1)For the purposes of Article 9(2)(h) of the [F15UK GDPR] (processing for health or social care purposes etc), the circumstances in which the processing of personal data is carried out subject to the conditions and safeguards referred to in Article 9(3) of the [F15UK GDPR] (obligation of secrecy) include circumstances in which it is carried out—

(a)by or under the responsibility of a health professional or a social work professional, or

(b)by another person who in the circumstances owes a duty of confidentiality under an enactment or rule of law.

(2)In Article 10 of the [F16UK GDPR] and section 10, references to personal data relating to criminal convictions and offences or related security measures include personal data relating to—

(a)the alleged commission of offences by the data subject, or

(b)proceedings for an offence committed or alleged to have been committed by the data subject or the disposal of such proceedings, including sentencing.

Rights of the data subjectU.K.

12Limits on fees that may be charged by controllersU.K.

(1)The Secretary of State may by regulations specify limits on the fees that a controller may charge in reliance on—

(a)Article 12(5) of the [F17UK GDPR] (reasonable fees when responding to manifestly unfounded or excessive requests), or

(b)Article 15(3) of the [F18UK GDPR] (reasonable fees for provision of further copies).

(2)The Secretary of State may by regulations—

(a)require controllers of a description specified in the regulations to produce and publish guidance about the fees that they charge in reliance on those provisions, and

(b)specify what the guidance must include.

(3)Regulations under this section are subject to the negative resolution procedure.

13Obligations of credit reference agenciesU.K.

(1)This section applies where a controller is a credit reference agency (within the meaning of section 145(8) of the Consumer Credit Act 1974).

(2)The controller's obligations under Article 15(1) to (3) of the [F19UK GDPR] (confirmation of processing, access to data and safeguards for third country transfers) are taken to apply only to personal data relating to the data subject's financial standing, unless the data subject has indicated a contrary intention.

(3)Where the controller discloses personal data in pursuance of Article 15(1) to (3) of the [F20UK GDPR], the disclosure must be accompanied by a statement informing the data subject of the data subject's rights under section 159 of the Consumer Credit Act 1974 (correction of wrong information).

14Automated decision-making authorised by law: safeguardsU.K.

(1)This section makes provision for the purposes of Article 22(2)(b) of the [F21UK GDPR] (exception from Article 22(1) of the [F21UK GDPR] for significant decisions based solely on automated processing that are [F22required or authorised under the law of the United Kingdom or a part of the United Kingdom] and subject to safeguards for the data subject's rights, freedoms and legitimate interests).

(2)A decision is a “significant decision” for the purposes of this section if, in relation to a data subject, it—

(a)produces legal effects concerning the data subject, or

(b)similarly significantly affects the data subject.

(3)A decision is a “qualifying significant decision” for the purposes of this section if—

(a)it is a significant decision in relation to a data subject,

(b)it is required or authorised by law, and

(c)it does not fall within Article 22(2)(a) or (c) of the [F23UK GDPR] (decisions necessary to a contract or made with the data subject's consent).

(4)Where a controller takes a qualifying significant decision in relation to a data subject based solely on automated processing—

(a)the controller must, as soon as reasonably practicable, notify the data subject in writing that a decision has been taken based solely on automated processing, and

(b)the data subject may, before the end of the period of 1 month beginning with receipt of the notification, request the controller to—

(i)reconsider the decision, or

(ii)take a new decision that is not based solely on automated processing.

(5)If a request is made to a controller under subsection (4), the controller must, within the period described in Article 12(3) of the [F24UK GDPR]

(a)consider the request, including any information provided by the data subject that is relevant to it,

(b)comply with the request, and

(c)by notice in writing inform the data subject of—

(i)the steps taken to comply with the request, and

(ii)the outcome of complying with the request.

(6)In connection with this section, a controller has the powers and obligations under Article 12 of the [F25UK GDPR] (transparency, procedure for extending time for acting on request, fees, manifestly unfounded or excessive requests etc) that apply in connection with Article 22 of the [F25UK GDPR].

(7)The Secretary of State may by regulations make such further provision as the Secretary of State considers appropriate to provide suitable measures to safeguard a data subject's rights, freedoms and legitimate interests in connection with the taking of qualifying significant decisions based solely on automated processing.

(8)Regulations under subsection (7)—

(a)may amend this section, and

(b)are subject to the affirmative resolution procedure.

[F26Exemptions etc] U.K.

15Exemptions etcU.K.

(1)Schedules 2, 3 and 4 make provision for exemptions from, and restrictions and adaptations of the application of, rules of the [F27UK GDPR].

(2)In Schedule 2—

(a)Part 1 makes provision adapting or restricting the application of rules contained in Articles 13 to 21 and 34 of the [F28UK GDPR] in specified circumstances [F29(of a kind described in] Article 6(3) and Article 23(1) of the [F30UK GDPR)];

(b)Part 2 makes provision restricting the application of rules contained in Articles 13 to 21 and 34 of the [F31UK GDPR] in specified circumstances [F32(of a kind described in] Article 23(1) of the [F33UK GDPR)];

(c)Part 3 makes provision restricting the application of Article 15 of the [F34UK GDPR] where this is necessary to protect the rights of others [F35(of a kind described in] Article 23(1) of the [F36UK GDPR)];

(d)Part 4 makes provision restricting the application of rules contained in Articles 13 to 15 of the [F37UK GDPR] in specified circumstances [F38(of a kind described in] Article 23(1) of the [F39UK GDPR)];

(e)Part 5 makes provision containing exemptions or derogations from Chapters II, III, IV [F40and V of the UK GDPR] for reasons relating to freedom of expression [F41(of a kind described in Article 85(2) of the UK GDPR)];

(f)Part 6 makes provision containing derogations from rights contained in Articles 15, 16, 18, 19, 20 and 21 of the [F42UK GDPR] for scientific or historical research purposes, statistical purposes and archiving purposes F43....

(3)Schedule 3 makes provision restricting the application of rules contained in Articles 13 to 21 of the [F44UK GDPR] to health, social work, education and child abuse data [F45(of a kind described in] Article 23(1) of the [F46UK GDPR)].

(4)Schedule 4 makes provision restricting the application of rules contained in Articles 13 to 21 of the [F47UK GDPR] to information the disclosure of which is prohibited or restricted by an enactment [F48(of a kind described in] Article 23(1) of the [F49UK GDPR)].

[F50(4A)In connection with the manual unstructured processing of personal data held by an FOI public authority, see Chapter 3 of this Part (sections 21, 24 and 25).]

(5)In connection with the safeguarding of national security and with defence, see Chapter 3 of this Part [F51(sections 26 to 28)].

Textual Amendments

16Power to make further exemptions etc by regulationsU.K.

(1)The following powers to make provision altering the application of the [F52UK GDPR] may be exercised by way of regulations made by the Secretary of State under this section—

(a)the power in Article 6(3) F53... to lay down a legal basis containing specific provisions to adapt the application of rules of the [F54UK GDPR] where processing is necessary for compliance with a legal obligation, for the performance of a task in the public interest or in the exercise of official authority;

(b)the power in Article 23(1) to make [F55provision] restricting the scope of the obligations and rights mentioned in that Article where necessary and proportionate to safeguard certain objectives of general public interest;

(c)the power in Article 85(2) to provide for exemptions or derogations from certain Chapters of the [F56UK GDPR] where necessary to reconcile the protection of personal data with the freedom of expression and information.

(2)Regulations under this section may—

(a)amend Schedules 2 to 4—

(i)by adding or varying provisions, and

(ii)by omitting provisions added by regulations under this section, F57...

(b)consequentially amend section 15 [F58, and

(c)consequentially amend the UK GDPR by adding, varying or omitting a reference to section 15, Schedule 2, 3 or 4, this section or regulations under this section.]

(3)Regulations under this section are subject to the affirmative resolution procedure.

Textual Amendments

Commencement Information

I5S. 16 in force at Royal Assent for specified purposes, see s. 212(2)(f)

[F59Certification]U.K.

17Accreditation of certification providersU.K.

(1)Accreditation of a person as a certification provider is only valid when carried out by—

(a)the Commissioner, or

(b)the [F60UK national accreditation body].

(2)The Commissioner may only accredit a person as a certification provider where the Commissioner—

(a)has published a statement that the Commissioner will carry out such accreditation, and

(b)has not published a notice withdrawing that statement.

(3)The [F61UK national accreditation body] may only accredit a person as a certification provider where the Commissioner—

(a)has published a statement that the body may carry out such accreditation, and

(b)has not published a notice withdrawing that statement.

(4)The publication of a notice under subsection (2)(b) or (3)(b) does not affect the validity of any accreditation carried out before its publication.

(5)Schedule 5 makes provision about reviews of, and appeals from, a decision relating to accreditation of a person as a certification provider.

(6)The [F62UK national accreditation body] may charge a reasonable fee in connection with, or incidental to, the carrying out of the body's functions under this section, Schedule 5 and Article 43 of the [F63UK GDPR].

(7)The [F64UK national accreditation body] must provide the Secretary of State with such information relating to its functions under this section, Schedule 5 and Article 43 of the [F65UK GDPR] as the Secretary of State may reasonably require.

(8)In this section—

  • certification provider” means a person who issues certification for the purposes of Article 42 of the [F66UK GDPR];

  • the [F67UK national accreditation body]” means the [F67UK national accreditation body] for the purposes of Article 4(1) of Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93.

Textual Amendments

Transfers of personal data to third countries etcU.K.

[F6817ATransfers based on adequacy regulationsU.K.

(1)The Secretary of State may by regulations specify any of the following which the Secretary of State considers ensures an adequate level of protection of personal data—

(a)a third country,

(b)a territory or one or more sectors within a third country,

(c)an international organisation, or

(d)a description of such a country, territory, sector or organisation.

(2)For the purposes of the UK GDPR and this Part of this Act, a transfer of personal data to a third country or an international organisation is based on adequacy regulations if, at the time of the transfer, regulations made under this section are in force which specify, or specify a description which includes—

(a)in the case of a third country, the country or a relevant territory or sector within the country, or

(b)in the case of an international organisation, the organisation.

(3)Regulations under this section may specify that the Secretary of State considers that an adequate level of protection of personal data is ensured only for a transfer specified or described in the regulations and, if they do so, only such a transfer may rely on those regulations for the purposes of subsection (2).

(4)Article 45(2) of the UK GDPR makes provision about the assessment of the adequacy of the level of protection for the purposes of this section and section 17B.

(5)Regulations under this section—

(a)where they relate to a third country, must specify their territorial and sectoral application;

(b)where applicable, must specify the independent supervisory authority or authorities referred to in Article 45(2)(b) of the UK GDPR.

(6)Regulations under this section may, among other things—

(a)provide that in relation to a country, territory, sector, organisation or transfer specified, or falling within a description specified, in the regulations, section 17B(1) has effect as if it required the reviews described there to be carried out at such shorter intervals as are specified in the regulations;

(b)identify a transfer of personal data by any means, including by reference to the controller or processor, the recipient, the personal data transferred or the means by which the transfer is made or by reference to relevant legislation, lists or other documents, as they have effect from time to time;

(c)confer a discretion on a person.

(7)Regulations under this section are subject to the negative resolution procedure.]

[F6817BTransfers based on adequacy regulations: review etcU.K.

(1)For so long as regulations under section 17A are in force which specify, or specify a description which includes, a third country, a territory or sector within a third country or an international organisation, the Secretary of State must carry out a review of whether the country, territory, sector or organisation ensures an adequate level of protection of personal data at intervals of not more than 4 years.

(2)Each review under subsection (1) must take into account all relevant developments in the third country or international organisation.

(3)The Secretary of State must, on an ongoing basis, monitor developments in third countries and international organisations that could affect decisions to make regulations under section 17A or to amend or revoke such regulations.

(4)Where the Secretary of State becomes aware that a country, territory, sector or organisation specified, or falling within a description specified, in regulations under section 17A no longer ensures an adequate level of protection of personal data, whether as a result of a review under this section or otherwise, the Secretary of State must, to the extent necessary, amend or revoke the regulations.

(5)Where regulations under section 17A are amended or revoked in accordance with subsection (4), the Secretary of State must enter into consultations with the third country or international organisation concerned with a view to remedying the lack of an adequate level of protection.

(6)The Secretary of State must publish—

(a)a list of the third countries, territories and specified sectors within a third country and international organisations, and the descriptions of such countries, territories, sectors and organisations, which are for the time being specified in regulations under section 17A, and

(b)a list of the third countries, territories and specified sectors within a third country and international organisations, and the descriptions of such countries, territories, sectors and organisations, which have been but are no longer specified in such regulations.

(7)In the case of regulations under section 17A which specify that an adequate level of protection of personal data is ensured only for a transfer specified or described in the regulations—

(a)the duty under subsection (1) is only to carry out a review of the level of protection ensured for such a transfer, and

(b)the lists published under subsection (6) must specify or describe the relevant transfers.]

[F6817CStandard data protection clausesU.K.

(1)The Secretary of State may by regulations specify standard data protection clauses which the Secretary of State considers provide appropriate safeguards for the purposes of transfers of personal data to a third country or an international organisation in reliance on Article 46 of the UK GDPR (and see also section 119A).

(2)The Secretary of State must keep under review the standard data protection clauses specified in regulations under this section that are for the time being in force.

(3)Regulations under this section are subject to the negative resolution procedure.]

18Transfers of personal data to third countries etc [F69: public interest]U.K.

(1)The Secretary of State may by regulations specify, for the purposes of Article 49(1)(d) of the [F70UK GDPR]

(a)circumstances in which a transfer of personal data to a third country or international organisation is to be taken to be necessary for important reasons of public interest, and

(b)circumstances in which a transfer of personal data to a third country or international organisation which is not required by an enactment is not to be taken to be necessary for important reasons of public interest.

(2)The Secretary of State may by regulations restrict the transfer of a category of personal data to a third country or international organisation where—

[F71(a)the transfer cannot take place based on adequacy regulations (see section 17A),] and

(b)the Secretary of State considers the restriction to be necessary for important reasons of public interest.

(3)Regulations under this section—

(a)are subject to the made affirmative resolution procedure where the Secretary of State has made an urgency statement in respect of them;

(b)are otherwise subject to the affirmative resolution procedure.

(4)For the purposes of this section, an urgency statement is a reasoned statement that the Secretary of State considers it desirable for the regulations to come into force without delay.

Specific processing situationsU.K.

19Processing for archiving, research and statistical purposes: safeguardsU.K.

(1)This section makes provision about—

(a)processing of personal data that is necessary for archiving purposes in the public interest,

(b)processing of personal data that is necessary for scientific or historical research purposes, and

(c)processing of personal data that is necessary for statistical purposes.

(2)Such processing does not satisfy the requirement in Article 89(1) of the [F72UK GDPR] for the processing to be subject to appropriate safeguards for the rights and freedoms of the data subject if it is likely to cause substantial damage or substantial distress to a data subject.

(3)Such processing does not satisfy that requirement if the processing is carried out for the purposes of measures or decisions with respect to a particular data subject, unless the purposes for which the processing is necessary include the purposes of approved medical research.

(4)In this section—

  • approved medical research” means medical research carried out by a person who has approval to carry out that research from—

    (a)

    a research ethics committee recognised or established by the Health Research Authority under Chapter 2 of Part 3 of the Care Act 2014, or

    (b)

    a body appointed by any of the following for the purpose of assessing the ethics of research involving individuals—

    (i)

    the Secretary of State, the Scottish Ministers, the Welsh Ministers, or a Northern Ireland department;

    (ii)

    a relevant NHS body;

    (iii)

    United Kingdom Research and Innovation or a body that is a Research Council for the purposes of the Science and Technology Act 1965;

    (iv)

    an institution that is a research institution for the purposes of Chapter 4A of Part 7 of the Income Tax (Earnings and Pensions) Act 2003 (see section 457 of that Act);

  • relevant NHS body” means—

    (a)

    an NHS trust or NHS foundation trust in England,

    (b)

    an NHS trust or Local Health Board in Wales,

    (c)

    a Health Board or Special Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978,

    (d)

    the Common Services Agency for the Scottish Health Service, or

    (e)

    any of the health and social care bodies in Northern Ireland falling within paragraphs (a) to (e) of section 1(5) of the Health and Social Care (Reform) Act (Northern Ireland) 2009 (c. 1 (N.I.)).

(5)The Secretary of State may by regulations change the meaning of “approved medical research” for the purposes of this section, including by amending subsection (4).

(6)Regulations under subsection (5) are subject to the affirmative resolution procedure.

Textual Amendments

Commencement Information

I7S. 19 in force at Royal Assent for specified purposes, see s. 212(2)(f)

Minor definitionU.K.

20Meaning of “court”U.K.

Section 5(1) (terms used in [F73this Part] to have the same meaning as in the [F74UK GDPR]) does not apply to references in [F73this Part] to a court and, accordingly, such references do not include a tribunal.

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