Legal & Government Affairs Update Issue 3 - 2017 | FAST

Legal & Government Affairs Update Issue 3 - 2017

News

Big data analytics and the ICO

"Big data analytics" - a concept so in vogue that the term has become a buzz word. Quick to point out that it is "no fad", the Information Commissioner's Office (ICO) last month published its second paper on the subject. The paper provides an illuminating discussion on some of the key issues surrounding big data and how it can be reconciled with data protection principles. However, before taking a look at this in more detail, it first seems necessary to clarify just what the term "big data analytics" means.

"Big data", "AI" and "machine learning" are terms often used interchangeably. Although closely related concepts, there is a notable distinction.

Whilst there is no single definition, the term "big data" essentially refers to colossal datasets of real-time data from a multitude of sources. Its size and complexity means that it is difficult, if not impossible, to analyse using traditional data analysis methods.

"AI" or "artificial intelligence" refers to the computational power capable of intelligently analysing big data.

"Machine learning" is a phrase encompassing the range of intelligent techniques and tools that sit behind AI. These mechanisms (based on complicated algorithms) allow computers to "think", adapt and respond autonomously accordingly to the data being processed. This means that computers can process and interpret big data with the insightfulness of a human (although not always through using the same anthropic rationale).  

Together, these three terms are often referred to as 'big data analytics" or simply "big data" and, for simplicity, these are the terms used throughout the remainder of this article.

Because big data analytics is such a sophisticated and complex approach to data processing, it has significant implications for data protection and privacy. It is therefore important to have an awareness of these implications whenever personal data is involved. Whilst the brevity of this update does not allow for an in depth look at the data protection implications of big data analytics, it does allow for a brief comment on some of the main points to take from the ICO report.

One of the key concerns flagged by the ICO is the possible conflict between big data analytics and the requirement for fair and transparent data processing. There is often a supposition that big data analytics is so sophisticated as to be somewhat shady or sinister.

This therefore poses the question of whether big data analytics has an intrusive effect on individuals; for instance, where big data is processed for the purposes of automated profiling. In circumstances such as these – where big data is used in a way to make decisions affecting individuals – the ICO reminds organisations of the need to consider principles of fairness. Similarly, the ICO emphasises the importance of expectation and considering whether individuals could reasonably expect their data to be used in the ways that big data analytics facilitates.

The complexity of the machine learning underpinning big data analytics means that transparency is another key issue. Not only can the opacity of the processing create problems for individuals whose data is being used, it can also lead to difficulties when obtaining meaningful consent to the processing of personal data. This problem is further complicated due to the experimental nature of big data analytics, which means it is not always practical to give consent at the outset.

Whilst the above provides a flavour of some of the concerns discussed at length in the ICO report, it seems appropriate for this update to conclude by focusing attention on the overall stance of the ICO on the subject. However, before doing so, it is worth very briefly mentioning the number of "compliance tools" suggested by the ICO. These are measures, such as anonymisation, designed to help organisations comply with their data protection obligations in a big data context.

As the recommendation of these tools would suggest, the ICO is clear in its view that it is not a case of big data or data. Rather, the ICO endorses the view that big data is compatible with current data protection legislation. It also recognises and accepts the many commercial benefits of big data analytics across vast swathes of the public and private sector. Nevertheless, there is no denying that the volume, variety and complexity of big data present numerous problems for organisations that must adhere to legislative obligations.

The ICO's focus is very much on how big data analytics and data protection can co-exist harmoniously. Data protection is not a blockade to big data analytics. Instead, a sensible, well managed and pragmatic approach is encouraged towards meeting data protection requirements and upholding key principles such as fairness and transparency.

How the ICO manages the tension between big data and the obligations on business to protect personal data under the GDPR will be one the ICO's biggest challenges in the years ahead, especially after Brexit when the British Government will have greater freedom to legislate in this area. It is important for industry that the ICO, in managing that tension, does not implement the GDPR in such a way that it threatens to stifle innovation and the enormous potential commercial and social benefits that big data can deliver on.

Case Law Updates

Illegal film streaming sites to be blocked

In an Irish ruling, reported at the beginning of this month, six well-known film and television studios have secured High Court injunctions directing nine internet service providers (ISPs) to block websites involved in the illegal streaming or downloading of films and TV shows. The ISPs include Sky Ireland, Vodafone Ireland and Virgin Media Ireland.

It was thought that up to 1.3 million internet users in Ireland could be illegally accessing films and TV online, costing the studios hundreds of millions annually. The ISPs are now required to block or disable access to the streaming websites.

This outcome follows the landmark decision of the UK High Court in the 2011 case known as Hollywood v BT, where Twentieth Century Fox, alongside several other Hollywood studies, obtained an injunction forcing BT to block access to a streaming website.

Consultations

Calls for views on the General Data Protection Regulation derogations

A Department for Culture, Media and Sport consultation seeks views on the derogations contained within Regulation 2016/679 (General Data Protection Regulation), due to apply in the UK from 25 May 2018.

The derogations (also known as exemptions), allow the UK to exercise discretion over how certain provisions of the Regulations will apply in practice. Views are therefore sought in order to inform the UK's derogations policy.

Comments are required by 10 May 2017 and the full text can be found at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/608518/GDPRCfV.pdf