Out of control

The General Secretary of the Labour Party, Jennie Formby, sent a letter to its Deputy Leader, Tom Watson, this week, expressing concern about Watson’s request that complaints about anti-semitism be copied or forwarded to him so that he could ensure that they were being dealt with properly. Formby outlined concerns about the effect on the complaints process that I am not qualified to answer, but she also raised the spectre of GDPR and Data Protection, and here, I am somewhat sceptical of her arguments.

Formby is right to say that political opinions are classed by the GDPR as special categories data and so require extra protection as compared to ordinary data like a name and address. I’m surprised that she didn’t also mention that many of the complaints would also include the religious or philosophical beliefs of complainants or the complained- about, as well as possibly their racial or ethnic origin. Why Formby didn’t want to highlight the religious and racial dimensions of complaints about anti-semitism is a bit of a poser.

To claim that Watson isn’t taking a risk by soliciting this data when he wasn’t already is clearly false. The best way to avoid Data Protection problems is not to process data in the first place, and as the third GDPR principle requires data minimisation, the safest choice for Watson is to trust the process and not receive any data. The problem arises if he doesn’t, or if he feels responsible for ensuring that it is working. If you think he’s operating purely politically, that’s your choice but I’m going to give him the benefit of the doubt. I’ve already had several heated disagreements on Twitter about this, mainly with people who are certain that he’s going to breach GDPR but uncertain about which particular element is in play.

So here’s my opinion. Tom Watson, in his capacity as Deputy Leader of the Labour Party, can process special categories data concerning complaints about anti-semitism, and Jennie Formby is wrong to argue that he cannot. It’s entirely possible that Mr Watson will follow the GDPR principles to the letter, and it’s entirely possible he will make an almighty cock-up of it. If he does, he should face the consequences. The Labour Party is no stranger to dodgy data dealings – it bought data that had been unlawfully obtained on its behalf by Emma’s Diary for the 2017 General Election, and while Emma’s Diary got fined, Labour didn’t. Sometimes, DP gets breached and nothing happens.

Formby said the following:

The suggestion that you as an individual data controller should receive and store data relating to complaints unrelated to your personal role as an MP, on a private email address, or indeed any other system, is completely unacceptable and exposes you, and the Party, to significant compliance risks.

Like all MPs, Watson is an individual data controller, but only when acting as MP for West Bromwich East and the constituency issues associated with that role. If Watson was acting as an MP and party members chose to forward their own complaints to him, or provide complaints made to them by others, it would be odd, but the Labour Party would not be responsible as Formby claims. Watson would be the controller. However, Watson is the party’s Deputy Leader and it is plain that he was acting in that capacity when he sought to receive the complaints – this is plainly a Labour Party matter, not an issue concerning the fine folk of West Brom.

If something in Labour’s constitution explicitly forbids the Leader or Deputy Leader from having direct involvement in, or oversight of, complaints, Watson has a problem. Formby’s letter clearly sets out her opposition to political involvement in the complaints process, and if she can back that up with a clear reference to the party’s formal rules, any argument that I might make in Watson’s favour is severely weakened. Labour’s formal internal rules have great significance for whether his processing is lawful. But if there isn’t, as Deputy Leader, I can’t see how Watson’s claim to determine the purposes for which the party uses data isn’t valid. In all big organisations, senior people can decide how and why data is used. The controller isn’t one person, it’s the organisation itself, and so logically, more than one person is involved in determining the purposes. If the Deputy Leader isn’t an appropriate person to make these decision, who is? Is it just Mr Corbyn?

There are at least two people’s personal data involved in any complaint Watson wants to see – the complainant and the subject of the complaint. Watson has to justify the processing of the data generally, and if the data is special categories, he has to find an exemption that allows him to process the special data.

If any person chooses to forward or copy their own complaint to Watson or his staff, they plainly consent to him processing their data. He can process any data about their political, religious or philosophical beliefs or ethnicity on the basis of their explicit consent. Watson might struggle to demonstrate he has explicit consent unless the email says ‘I explicitly consent for you to process data about my religion, politics or ethnicity’, but in the real world, it’s impossible to believe that the Information Commissioner or the courts would uphold a complaint from the very same person who forwarded their own complaint. It’s nonsense.

If the complaint is submitted to Watson by a third party, this is more tricky, unless of course the person forwarding or copying the complaint (presumably an MP or other party member) gets consent from the complainant. If that consent exists, Watson is in the clear. If not, he must establish a lawful basis to process the data. In my opinion, he has a legitimate interest in receiving and monitoring complaints about anti-semitism in a party of which he is Deputy Leader, especially when a Jewish Labour MP has just left that party because of anti-semitism. Watson would need to evidence the legitimate interests assessment, but I believe he could make it out. It is surely the role of a Deputy Leader to want to make sure that complaints are being dealt with properly, especially when the issue is as important or potentially damaging as this?

If he doesn’t have consent from a complainant and the complaint contains special categories data, Watson has another hurdle to clear in terms of a special categories exemption. However, the GDPR allows the processing of special categories data in the following circumstances:

processing is carried out in the course of its legitimate activities with appropriate safeguards by a foundation, association or any other not-for-profit body with a political, philosophical, religious or trade union aim and on condition that the processing relates solely to the members or to former members of the body or to persons who have regular contact with it in connection with its purposes and that the personal data are not disclosed outside that body without the consent of the data subjects

As long as a complaint was made by a current or former member, Watson can argue that his monitoring of the process is carried out in the course of the party’s legitimate activities. Alternatively, he could argue that it is necessary in the substantial public interest. I believe that ensuring that Labour is taking anti-semitism seriously meets that definition, although Watson also needs legal authorisation from the Data Protection Act 2018 to rely on that exemption. The authorisations include ensuring that equality of treatment is maintained (including the treatment of people with specific religious beliefs). I don’t think Watson needs this, but it’s there.

As far as the data of the complained-about goes, Watson plainly doesn’t have their consent and has no hope of obtaining it. However, I believe again that he has a legitimate interest in gathering the data, and if the data includes special categories like political opinions or religious beliefs, he can rely on the legitimate activities exemption quoted above. Once again, if you disagree, it’s worth noting that another exemption from the prohibition on processing special categories is the fact that the person clearly made the data public themselves. Many of the complaints about anti-Semitism come from comments made online or in public meetings and speeches – the meat of the complaint is very likely to concern public statements or utterances from the complained-about. You cannot object to Tom Watson reading a complaint about your tweets because you tweeted them into the public domain.

If Watson goes ahead with this, he has plenty of work to do. I do not believe that any of the above removes the obligations to comply with GDPR’s transparency requirements – everyone whose data he receives needs to be informed about the fact that their data will form part of the complaints process and Watson’s review. The data must be secure, not used for anything other than the complaints process, and of course, anyone whose data is being processed has rights over their data. Given the less than congenial state of intra-Labour relations, it’s not hard to imagine that the Deputy Leader might be left to his own devices should a nasty subject access request come knocking.

Of course, all of this is bollocks. The Labour General Secretary doesn’t really care about Data Protection (neither did her predecessor). This is politics. Anyone who describes their processing arrangements as ‘elaborate’ is making it up as they go along. No political party has a good record on Data Protection, which is why it’s a shame that the Information Commissioner is so shy about taking them on. Even though I believe that Watson wants to root out anti-semitism in Labour’s ranks, I wouldn’t be surprised if part of his aim is to send a message to Formby about the process.

There is, however, a solution to the whole mess, should anyone wish to take it up. If Watson withdraws his request to see all the complaints, Formby could offer to supply him with pseudonymised versions of them. That way, Watson could carry out an appropriate supervisory role, ensuring that this most vital of tasks is carried out efficaciously, but at the same time, no directly identifiable personal data would be made available to him, and he could assure Formby that he would not attempt to identify the parties. The risk would be low, the data would be protected, and surely nobody could object to an elected Deputy Leader keeping a watchful eye on an issue that is so very important?

SPECIAL RULES FOR COMMENTING ON THIS POST

  1. Any comment containing the word ‘Israel’ goes in the bin.
  2. Any comment that is about who funds who goes in the bin.

Thank you, and good night.

Comments

  1. John Robinson says:

    Thanks for a really interesting post, Tim. The politics and subtexts of the subject matter are fascinating enough (and I agree with your point absolutely about Watson’s Deputy Leader status for data protection purposes in ). Setting aside all this aside, your application of data protection principles and rules to the situation is an elegant lesson in how to reason one’s way through complex issues in order to reach a decision about lawful basis etc. and viable justifications therefor. Very valuable for someone fairly new, like me, to the world of data protection.

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