The current economic climate is changing the way many firms operate and may cause some to leave the market or merge with other firms. When this happens, firms must make sure they lawfully process and transfer client data.
What firms need to consider
Principles[1] in the FCA Handbook require firms to organise and control their affairs responsibly and effectively, with adequate risk management systems (Principle 3). Before transferring clients’ personal data, firms should consider whether this is fair to and in the interests of their clients (Principle 6). Firms should also pay due regard to the information needs of their clients and communicate with them clearly and fairly (Principle 7).
Data protection legislation and the Information Commissioner’s Office
Data protection legislation applies to data controllers such as firms, compliance consultants, insolvency practitioners and liquidators. The Information Commissioner’s Office (ICO) is responsible for regulating, and enforcing, information and privacy rights in the UK. Relevant legislation includes:
- Data Protection Act 2018 (DPA[2])
- General Data Protection Regulation (EU) 2016/679 (GDPR[3])
- Privacy and Electronic Communications Regulations (EC Directive) 2003 (PECR[4])
How firms must protect client data
GDPR requires firms to provide information to clients clearly setting out ‘privacy information’, which includes the purposes for which they are collecting or processing client data, and individuals’ rights when their data is processed. Further detail on information that must be given when client data is collected, usually when taking on new clients, is available at the ICO Right to be informed page[5].
Firms should generally ensure they maintain a record of how and why they process, share and retain personal data. The ICO provides guidance on documentation[6] and guidance on records management and security expectations[7].
Firms should also record the lawful basis for processing data. If they are processing data based on consent, they should maintain an effective audit trail of how and when consent was given. The ICO provides guidance on obtaining, recording and managing consen[8]t and guidance for small organisations[9].
How we protect consumer interests
We will act where we identify breaches of relevant parts of the FCA Handbook. Firms that intend to transfer or receive personal client data must be able to demonstrate how they have considered the fair treatment of consumers and how their actions comply with data protection and privacy laws.
The impact of Brexit
GDPR currently has direct effect in the UK. At the end of the Brexit transition period the GDPR provisions will form part of retained EU law, with amendments made by DP exit regulations[10] under the European Union (Withdrawal) Act 2018[11]. The DPA 2018[2] and PECR[4] will continue to apply, alongside the GDPR. There will be some amendments to ensure they work in a UK-only context. The ICO produced guidance on data protection[12] for the end of the transition period which is regularly updated.