In the UK,
the rights and obligations regarding protection of an individual’s personal
data are written in the Data Protection Act 2018 (the ‘DPA’ or the ‘Act’). In
addition to the DPA, if you communicate by electronic messages, you also need
to comply with the Privacy and Electronic Communications Regulations (the
‘PECR’).
We are
often asked whether this privacy notice is GDPR compliant. The answer is that
it is, because the requirements under the General Data Protection Regulations
are incorporated into the DPA. By complying with the DPA, you comply with the
GDPR.
Post-Brexit,
UK law, the DPA, still applies.
We are less
frequently asked if this privacy notice complies with California privacy laws,
or others around the world. The answer is that it doesn’t. The reason that it
doesn’t is because we assume that your business is located in the UK, and
therefore that the State of California has no legal jurisdiction over your activities
unless you operate a physical business in California or have registered a
subsidiary there.
The requirements under the DPA are similar in extent to prior data protection law in the UK. If your business complies with prior law, then the changes you need to make are likely to be small.
The possible implications for non-compliance are now much more severe. In theory, the Information Commissioner’s Office (the ICO) has the power to fine a business 4% of its annual worldwide turnover.
However, regarding
selling to consumers we believe that the ICO in practice is unlikely to fine
many small businesses and organisations without having first given a warning.
Having a privacy notice (such as one based on this template) that shows some
effort to comply with the law is likely, in our opinion, to generate enough
goodwill with the ICO to avoid a fine in the first instance.
Updating your website privacy notice is not the only requirement for compliance with the DPA. You are also likely to need to change how customers and visitors can access personal data held about them, and create new procedures for obtaining compliance to collect and use personal data.
You may also need to update other legal documents, in particular, your website terms and conditions. Free versions of these are also available from our website.
Using this template as the basis for your privacy notice
Your privacy policy should be concise (while also being comprehensive), transparent, easy to understand and easily accessible.
You may think that a document stretching to 19 pages is not concise, but much of it can be deleted when applying it to your business.
We offer this template free as an example of a Net Lawman document. We hope that you like it, and that you may buy other documents and services from us in the future.
Regardless of the price, we assert our copyright in the document. Our standard licence terms apply. While you may not distribute the template without including our copyright, you may remove our copyright notice from the footer of the version you edit and use.
In addition to these paragraph specific guidance notes to help you edit the template, we also publish a free, more general guide to editing our legal documents, which you can download at:
https://www.netlawman.co.uk/uploads/Editing Legal Document Templates.pdfIf you have
any questions, please contact us at
support@netlawman.co.ukNumbered notes refer to specific numbered
paragraphs in the template.
Identification of the owner of the website
The Act requires that you identify the business or the organisation that operates the website. Using the domain name as the business name is technically not enough. You need to provide a business or organisation name and an address.
In practice, you may decide that you do not want to provide your name and address (for your own privacy reasons). You may be more likely to get away with doing this if you don’t trade from your website and if you provide a reliable means of contact.
The aim of the introduction is to explain the purpose of the document, the key terms ‘process’ and ‘personal data’ and the scope of the document (whether it applies to data just processed as a result of interaction with your website and/or with other websites).
Unless your organisation processes large volumes of personal data, you are unlikely to be required to appoint a data protection officer.
If you have nominated an individual, you may mention him or her in this paragraph.
Otherwise, you can delete this section.
The Act only applies to personal data.
This section introduces the next 3 sections. Delete the bullet
points that don’t apply.
You need to edit this paragraph so that it applies to your website.
We have given common examples of types of personal data that are collected. If
any don’t apply, delete them.
As above.
You may not collect the first three, but you are likely to collect the last four, even if you are not aware now that you do so. Web servers tend to log information to which you could have access.
We suggest leaving this section unedited.
If you process certain types of personal data, you are required to disclose that you do so.
Use either the first sentence or the last one.
This is a reminder to your customer or visitor that you may not be
able to provide services if you are not given information.
The bases on which we process information about you
The following relates to sections 8 to 12.
A requirement of the Act is that you tell the data subject why you process the data and which legal basis you have chosen to use as the justification to process his or her data.
Most websites will process different types of data on different bases. The two most likely to apply are ‘Contract’ (after the visitor has accepted your terms and conditions) and ‘Consent’ (after the visitor has agreed to your use of his or her data – usually by taking some affirmative action such as clicking on a button). Some data may also be processed because of a Legal Obligation or a Legitimate Interest. In a few cases, Vital Interests may be used.
The reasons why you process the data arise as a result of the basis. If there is a contract, there is a contractual obligation to carry out the service. If the basis is Consent, then there will probably be some benefit to the data subject of you using the information.
You may want to edit these sections in minor ways (certainly where we have highlighted in blue).
More importantly, you should make design changes to how your website works so as to obtain explicit consent, or have a visitor agree to your terms earlier in your relationship.
For most websites, Contract is the strongest basis for processing. If you can design your website experience such that a visitor agrees to your terms early on, before providing personal data, you will have fewer grounds for complaints. For example, you might reduce the requirement to provide detailed information when a visitor registers a basic account on your website, but place more content or functionality in an area of the website that requires the visitor to have such an account. At the registration point, the visitor must tick a box to say that he or she has read and agrees to your terms and conditions.
If you are
relying on Consent, then you might design a banner to appear when a visitor
first arrives at your site (for example, encouraging him or her to read your
cookies policy).
Positive action needs to be taken by the visitor when agreeing to anything – pre-ticked boxes or close buttons don’t count as affirmative action.
Legitimate Interests is a basis that is fairly subjective. For it to be used, you must have decided that there is a legitimate interest, that processing the data is necessary to protect that interest, and that the data subject’s interests (or other interests) do not override it. In some circumstances, it is most appropriate, but if possible, we would recommend using Contract or Consent as better alternatives. The reason is simply that the data subject is less likely to complain if he or she has clearly asked you to process his or her data.
Vital Interests is unlikely to be necessary to include, unless you work with, or could be involved with, potentially vulnerable people.
Data subjects have a legal right to see the personal data you hold about them. You need both an internal process as to how to provide this, and a means for the data subject to request the information.
If the data subject is a registered visitor, then providing his or her data in an account area is a good way of providing this data. You can also provide a way of giving Consent to use of the data in the same place.
If the data subject does not have an account, then you should give either an e-mail address or a physical address to which the data subject can send a request for his or her information (one of the reasons for including your address at the top of the notice).
Lastly, for each basis you need to state when you stop processing the data. We suggest that you don’t edit our text.
If you don’t share any data, leave this paragraph in place. Otherwise (as for most website owners), delete it.
This section serves as a reminder that information that a visitor posts on your website may be available for public viewing, and that you cannot be held responsible if someone else copies it and uses it without the author’s permission.
You should provide a way for someone to contact you and request that content is removed. This could be as simple as an e-mail address.
There are two options here. Delete whichever is not relevant.
The first covers the situation where you do record card information. You should edit the ‘measures to protect your information’ so that they are relevant to your business.
The second covers the situation where card information stays with the payment service provider.
If you don’t take payment at all, of course delete this paragraph completely.
If you take payments by Direct Debit then edit this section. Otherwise, you can delete it.
The purpose of this paragraph is to set out for how long personal data is processed. It is a requirement of the Act.
This paragraph is a reminder to visitors that you may use third party information provision services. Delete if not appropriate to your organisation.
Delete if not appropriate to your organisation.
We suggest that you leave this
paragraph in place even if you have no immediate intention of liaising with
debt collectors. It may be a useful reminder to users of your website.
If you moderate disputes between users of your website, you should leave these paragraphs in place. Otherwise you can delete them.
Edit as appropriate. You may need to include other examples that are relvant to your organisation.
Information relating to affiliates is not subject to the Act. This paragraph is included to reassure business partners.
Use of information we collect through automated systems
This section provides more information about specific types of information. The paragraphs within it are as much designed to reassure a visitor reading your policy than to aid compliance with the law.
The start of this paragraph is an explanation of what cookies are.
It is good practice to display a message when a visitor first comes to your website asking whether he or she accepts use of cookies. The paragraph in blue supports this.
We take the approach here of not
listing every single cookie.
The reason is that you not know this information yourself, especially if you use third party add-ons or plug-ins to your website. For example, Google provides visitor tracking software (Analytics) that is popular. It could at any point change the name or purpose of the many cookies it uses without telling you.
There are so many cookies that software you use is likely to place that to list them here would increase the size and complexity of the notice, and to keep the notice up-to-date as they change would be time consuming.
Listing every cookie’s file name, purpose and expiration period could be done in a separate cookie notice, linked from this paragraph.
We prefer the approach of explaining in what ways they are used. Add or delete to this list as appropriate.
Most web servers log requests for pages. We suggest you leave this paragraph as is, even if you don’t use this information.
Re-marketing is the name given to the practice of advertising your products and services on third party websites based on pages on your website that the visitor has already seen.
It requires you as the website owner to be the client of an advertising service provider.
When a visitor visits a page of your website, the advertiser’s software through your website places a cookie on the visitor’s computer. When he or she visits another webpage on a third party website, you can choose whether or not to pay to show him or her an advert for your product or service.
For example, you might sell fruit from your website. A visitor visits a page about the health benefits of eating a particular tropical fruit. Later, the same visitor visits another website about cookery, and specifically a page that describes a recipe that requires the tropical fruit. Both your website and the cookery website use the same advertising service provider. You can choose to pay to have your adverts for that tropical fruit to be displayed on the cookery website.
The advertising service provider usually allows you to specify exactly what criteria must be met in order to display your advert, making re-marketing a cost efficient way of advertising.
Some people feel very strongly about re-marketing. It can elicit fears of “being followed around the web”, particularly if the topic of the advert is sensitive.
You can choose to delete this paragraph entirely if you do not use re-marketing. However, keeping it in place will allow you to experiment with different types of display marketing later.
A key requirement of the law is that you tell your visitors and customers that they have rights with respect to how their personal data is processed. Rather than cluttering your privacy notice with an explanation of their rights, we recommend referring your visitors to this explanatory website.
Under UK law, you cannot form a contract with a child. So a child cannot agree to your terms and conditions, which means that he or she cannot agree to your terms regarding use of his or her information. Additionally, only a parent or guardian can give consent.
So it is very difficult to have a lawful basis for processing personal data about children.
Additionally, personal data about children is regarded as more sensitive than the same information about an adult. The consequences for data breaches could be much greater.
Unless the likelihood of visitors under the age of 18 using your website is low, we suggest you edit this paragraph to suit your website and keep it in.
This section is included to reassure visitors. If you do not use SSL then remove the paragraph.
This section is only relevant if you provide a service by video or telephone communication software. Examples would be provision of business consulting, tutoring and fitness coaching.
It is a legal requirement to tell the visitor if his or her information is processed outside the UK. It is especially important if you have your own business operations outside the UK.
If you want to be as compliant as possible, you should also identify carefully whether you use services outside the UK. You may use, for example, a US-based online software service to provide your chat system.
In practice, it might be very difficult to identify exactly where software has been written, whether the software house processes your data in any way, and where this might take place.
The clause giving examples (in blue) could be deleted entirely if you don’t want possibly to mislead readers.
The safeguards (bullet points at the end of the paragraph) seem verbose, but are copied verbatim from the legislation. Choose the most appropriate (one, maybe two) and delete the others.
For most organisations, the second bullet point is likely to be the one used.
Under the Act, a data subject has a right to access information about him or her, and a right for that information to be kept up-to-date and only for as long as required.
You should leave these paragraphs in place, editing the addresses.
Communication requires a transfer of personal data. These paragraphs should explain how you deal with information arising from communication.
This paragraph sets out standard wording that tells visitors how to make a complaint.
It gives you a stronger argument to use arbitration or mediation as a means of resolving a complaint, rather than going to court.
In any case, you must tell visitors to your site about their right to complain to the supervisory body, the Information Commissioner’s Office.
It is a requirement of the Act to tell data subjects for how long personal data will be kept. This paragraph is a catch-all if the information is not provided elsewhere.
Basic UK law relating to limitation for bringing a claim, contract matters, tax and other areas often requires data to be retained for six years. You should be ‘safe’ if you specify that period for commercial transactions.
Leave this paragraph in place.
Leave this paragraph in place.