What security obligations are imposed on data controllers and data processors?
Security requirements may not always be included in the data protection law, but are key to guaranteeing lawful processing of personal data. The entity processing the data must take all useful precautions with respect to the nature of the data and the risk presented by the processing, to preserve the security of the data and prevent alteration, corruption or access by unauthorized third parties. Appropriate technical and organizational measures shall be implemented to ensure a level of security appropriate to the risk.
Employers in the UK should follow the general security standards listed in Article 32 of the General Data Protection Regulation (GDPR). The UK passed the Data Protection Act 2018 (“Act”) to implement the GDPR and to allow for continued application of the GDPR once the UK leaves the EU. The Act largely mirrors GDPR requirements.
When protecting employee and applicant data, consider the sensitivity of the information, the technology available, the expense of protecting the data and the risk to individuals if the data is compromised. Then take organizational and technological measures, including:
- measures to ensure the confidentiality, integrity, availability and resilience of information processing systems
- measures to restore the system and access in case of an incident (such as a power outage)
- processes to regularly test and assess the system to ensure continued security.
The UK’s Information Commissioner's Office (ICO) recommends that organizations should adopt best practice methodologies such as ISO 27001. In addition, the UK’s Data Protection Act 2018 requires that employers put ‘appropriate policy documents’ in place, in certain cases, if they are processing special/sensitive information (e.g. performing criminal background checks). The Data Protection Act 2018 also requires that employers: have an ‘appropriate policy document’ in place, outlining and explaining the procedures for securing compliance with the principles of Article 5 of the GDPR; and, provide employees with a document outlining company data retention policies.
HR Best Practices: Ensure contracts with service providers detail the security and confidentiality measures to be implemented. Areas that should be considered include:
data access protection (with a clear access and password policy)
electronic data storage
data transfer (encryption)
data disposal (for example, the data processor can commit to take all necessary steps to ensure that all business-critical information is removed from any decommissioned computers or external drives)
employee awareness (through training programs and similar)