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DATA-PROTECTION  January 2010

DATA-PROTECTION January 2010

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Subject:

Re: Section 5 (1) (a)

From:

"Marchini, Renzo" <[log in to unmask]>

Reply-To:

Marchini, Renzo

Date:

Fri, 29 Jan 2010 06:22:25 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (183 lines)

Paul,

I think I can reassure you.  If the data is not in the UK, then I think
the DPA will not apply for all the reasons you state.   It is not being
processed in the context of the UK establishment. 

If however, there was a centralised service (IT or HR, say) across the
group so that the data was within the UK, the position would be
different. 

Hope this helps
Renzo 


Renzo Marchini 
Dechert LLP 
+44 (0) 20 7184 7563 direct 
+44 (0) 20 7184 7001 fax 
[log in to unmask]
www.dechert.com

-----Original Message-----
From: This list is for those interested in Data Protection issues
[mailto:[log in to unmask]] On Behalf Of Paul Ticher
Sent: 29 January 2010 11:07
To: 
Subject: Re: [data-protection] Section 5 (1) (a)

That bit I'm clear about.  The organisation is definitely established in
the 
UK, because it is incorporated here.  But are its local operations in
India 
taking place "in the context of" its UK establishment?  The staff in
India 
are employed under Indian law, with Indian terms and conditions, etc.
So I 
want to be able to say that their personnel records are not held "in the

context of" the organisation's UK establishment.

The ICO helpline person I spoke to didn't seem very familiar with the
Act, 
or to understand properly the question I was asking, but did eventually 
consult someone who said the UK organisation essentially has no 
responsibility for the local data processing of its Indian operation, 
provided the data never comes back to the UK, of course.  So I think
that's 
the answer, but I need reassurance.

Paul Ticher
0116 273 8191
22 Stoughton Drive North, Leicester LE5 5UB


----- Original Message ----- 
From: "chris pounder" <[log in to unmask]>
To: <[log in to unmask]>
Sent: Friday, January 29, 2010 10:26 AM
Subject: Re: Section 5 (1) (a)


> How do you recognise "established"? Registered at companies house,
> advertising in the UK, established by the UK Parliament etc etc.
>
> Taxman probably got there first - if the organisation pays taxes in
the UK
> it is likely to be established in the UK.
>
> C
>
> -----Original Message-----
> From: This list is for those interested in Data Protection issues
> [mailto:[log in to unmask]] On Behalf Of Paul Ticher
> Sent: 29 January 2010 10:17
> To: [log in to unmask]
> Subject: [data-protection] Section 5 (1) (a)
>
> Hi all,
>
> Small, unexciting, technical issue.
>
> Is anyone familiar with Section 5 (1) (a) of the Act?  The relevant
bit
> says:
>
> "... this Act applies to a data controller ... only if ... the data
> controller is established in the United Kingdom and the data are
processed
> in the context of that establishment ... "
>
> In particular I need to know what "in the context of that
establishment"
> means.  If I am a UK company with a branch office in India, say, do my
UK
> data protection obligations extend to the personnel records kept in
India
> about the staff employed locally (with money provided from the UK), or

> only
> to the personnel records kept in the UK about the senior staff who are
> employed and paid in the UK, but based in India?
>
> Paul Ticher
> 0116 273 8191
> 22 Stoughton Drive North, Leicester LE5 5UB
>
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^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
     All archives of messages are stored permanently and are
      available to the world wide web community at large at
      http://www.jiscmail.ac.uk/lists/data-protection.html
     If you wish to leave this list please send the command
       leave data-protection to [log in to unmask]
All user commands can be found at
http://www.jiscmail.ac.uk/help/commandref.htm
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owner
              [log in to unmask]
  Full help Desk - please email [log in to unmask] describing your
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 This e-mail is from Dechert LLP, a law firm, and may contain information that is confidential or privileged. If you are not the intended recipient, please delete the e-mail and any attachments, and notify the sender. Dechert LLP is a limited liability partnership registered in England & Wales (Registered No. OC306029) and is regulated by the Solicitors Regulation Authority. A list of names of the members of Dechert LLP (who are solicitors or registered foreign lawyers) is available for inspection at its registered office, 160 Queen Victoria Street, London EC4V 4QQ.

^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
     All archives of messages are stored permanently and are
      available to the world wide web community at large at
      http://www.jiscmail.ac.uk/lists/data-protection.html
     If you wish to leave this list please send the command
       leave data-protection to [log in to unmask]
All user commands can be found at http://www.jiscmail.ac.uk/help/commandref.htm
 Any queries about sending or receiving messages please send to the list owner
              [log in to unmask]
  Full help Desk - please email [log in to unmask] describing your needs
        To receive these emails in HTML format send the command:
         SET data-protection HTML to [log in to unmask]
   (all commands go to [log in to unmask] not the list please)
    ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

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