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The UK DPA fined a transgender charity approximately €29,250 (£25,000) for infringing Article 5(1)(f), 32(1) and 32(2) GDPR. Internal emails containing special category data sent by the charity, which supports gender non-conforming children and their families, were publicly available online for over a year.   
The UK DPA fined a transgender charity approximately €29,250 (£25,000) for infringing Article 5(1)(f), 32(1) and 32(2) GDPR. Internal emails containing special categories data sent by the charity, which supports gender non-conforming children and their families, were publicly available online for over a year.   


== English Summary ==
== English Summary ==

Latest revision as of 09:00, 28 July 2021

ICO (UK) - Mermaids
LogoUK.png
Authority: ICO (UK)
Jurisdiction: United Kingdom
Relevant Law: Article 5(1)(f) GDPR
Article 32(1) GDPR
Article 32(2) GDPR
Type: Investigation
Outcome: Violation Found
Started:
Decided: 05.07.2021
Published: 08.07.2021
Fine: 25000 GBP
Parties: Mermaids
National Case Number/Name: Mermaids
European Case Law Identifier: n/a
Appeal: n/a
Original Language(s): English
Original Source: Information Commissioner's Office (in EN)
Initial Contributor: n/a

The UK DPA fined a transgender charity approximately €29,250 (£25,000) for infringing Article 5(1)(f), 32(1) and 32(2) GDPR. Internal emails containing special categories data sent by the charity, which supports gender non-conforming children and their families, were publicly available online for over a year.

English Summary

Facts

Mermaids is a registered charity supporting children, young people and their families in relation to gender non-conformity.

In 2016, Mermaids created an internet-based email group service at https://groups.io, overseen by a third party in the USA. This email group was intended to be shared between the CEO of Mermaids and 12 trustees. The default security and privacy settings were left in place, including "Group listed in directory, publicly viewable messages".

Mermaids was notified in 2019 by a user of the charity that internal emails, sent using the groups.io email group service, were publicly available online and were searchable through search engines. These contained personal data, including special category data. The service user, who's child is gender non-conforming, was made aware that her child's name, date of birth, mental and physical health were available online, as well as the mother's name, telephone number and address.

Overall, 780 pages of confidential emails were available online. This corresponded to 550 data subjects. 15 data subjects had special category data concerning them made available online (mental or physical health; sex life; sexual orientation) and 9 data subject's personal data was considered sensitive in the context. Of these 24 data subjects, 4 were 13 years old or under.

Mermaids notified the ICO on the day it was told about this.

Dispute

Holding

The Information Commissioner's Office (ICO) considered that Mermaids processed emails on an email group without appropriate restricted access settings. Due to this failure, third parties could gain unauthorised access to emails containing personal data, including special category data. The ICO deemed this in contravention of the principle of integrity and confidentiality (Article 5(1)(f) GDPR).

The ICO also considered that Mermaids failed to satisfy its obligations under Articles 32(1) and 32(2) GDPR. It did not have adequate security measures in place to protect the email group affected. As a consequence, special category data was publicly accessible online for over a year between 2018 and 2019.

The ICO considered various factors that aggravated the violation in order to assess whether a penalty was appropriate. Accordingly, the ICO highlighted the sensitive nature of the publicly available personal data (special category data: gender and health data). It also assessed the gravity of the matter. In relation to this, it deemed that Mermaids' failures increased the vulnerability of the people who's special category data and personal data was made publicly available. The risk of damage or distress for gender non-conforming children was considered particularly high due to discrimination and prejudice. The ICO also took into consideration the types and number of data subjects (some children) affected and the fact that this concerned special category data or sensitive data in context.

The ICO found that Mermaids' general data protection policies were also inadequate. The staff lacked adequate training and insufficient safeguards were put in place to protect young vulnerable data subjects.

Since the discovery of the leak, the ICO found that Mermaids has taken proactive steps to remedy the infringement and mitigate the adverse consequences. For example, it immediately adjusted its groups.io privacy settings. It informed individual affected and hired a data protection consultant for additional support to address its failings and look into the organisation's data protection policies.

With these considerations in mind, the ICO imposed a fine of approximately €29,250 on Mermaids for its violation of Article 5(1)(f), Article 32(1) and Article 32(2) of the GDPR.

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English Machine Translation of the Decision

The decision below is a machine translation of the English original. Please refer to the English original for more details.

                                                          ICO.
                                                          Information Commissioner'sOffice

        DATA PROTECTION ACT 2018 (PART 6, SECTION 155)


   SUPERVISORY POWERS OF THE INFORMATION COMMISSIONER


                    MONETARY PENALTY NOTICE


TO:  Mermaids



OF:  Main Office, Suite 4, Tarn House, 77 the High Street, Yeadon, Leeds,
     LS19 7SP; London Office, Office 3, 63 Charterhouse Street, London,

     EClM 6HJ


   1. Mermaids is Registered Charity Number 1160575.


   2. The Information Commissioner ("the Commissioner") has decided to

     issue Mermaids with a Penalty Notice under section 155 of the Data

     Protection Act 2018 ("the DPA"). This penalty notice imposes an
     administrative fine on Mermaids, in accordance with the

     Commissioner's powers under Article 83 of the General Data Protection
     Regulation 2016 ("the GDPR"). The amount of the monetary penalty is

     £25,000.


   3. This penalty has been issued because of contraventions by Mermaids of

     Articles 5(l)(f) and 32(1) and (2) of the GDPR in that during the period
     of 25 May 2018 to 14 June 2019 Mermaids failed to implement an

     appropriate level of organisational and technical security to its internal

     email systems, which resulted in documents or emails containing
     personal data, including in some cases relating to children and / or

     including in some cases special category data, being searchable and
     viewable online by third parties through internet search engine results.


                                  1                                                              ICO.
                                                              Information Commissioner'sOffice
      In the interests of clarity, 25 May 2018 is the date on which the GDPR
      became applicable in all member states, including the United Kingdom

      ("the UK"), and 14 June 2019 is the date on which the controller took

      steps to secure the email group in question.


   4. This Monetary Penalty Notice explains the Commissioner's decision,

      including the Commissioner's reasons for issuing the penalty and for
      the amount of the penalty.


Legal framework for this Monetary Penalty Notice


Obligations of the controller


   5. Mermaids is a controller for the purposes of the GDPR and the DPA,

      because it determines the purposes and means of processing of

      personal data (GDPR Article 4(7)).

   6. 'Personal data' is defined by Article 4(1) of the GDPR to mean:


        information relating to an identified or identifiable natural person
        ('data subject'); an identifiable natural person is one who can be
        identified, directly or indirectly, in particular by reference to an
        identifier such as a name, an identification number, location data,

        an online identifier or to one or more factors specific to the physical,
        physiological, genetic, mental, economic, cultural or social identity
        of that natural person.

   7. 'Processing' is defined by Article 4(2) of the GDPR to mean:


        any operation or set of operations which is performed on personal
        data or on sets of personal data, whether or not by automated
        means, such as collection, recording, organisation, structuring,
        storage, adaptation or alteration, retrieval, consultation, use,
        disclosure by transmission, dissemination or otherwise making
        available, alignment or combination, restriction, erasure or
        destruction



                                    2                                                            ICO.
                                                            Information Commissioner'sOffice
8. Article 9 GDPR prohibits the processing of 'special categories of personal
   data' unless certain conditions are met. The special categories of

   personal data subject to Article 9 include 'data concerning health or data

   concerning a natural person's sex life or sexual orientation'.


9. Controllers are subject to various obligations in relation to the processing

   of personal data, as set out in the GDPR and the DPA. They are obliged
   by Article 5(2) to adhere to the data processing principles set out in

   Article 5(1) of the GDPR.


10.      In particular, controllers are required to implement appropriate

   technical and organisational measures to ensure that their processing of
   personal data is secure, and to enable them to demonstrate that their

   processing is secure. Article 5(l)(f) stipulates that:


         Personal data shall be[. ..] processed in a manner that ensures
         appropriate security of the personal data, including protection
         against unauthorised or unlawful processing and against
         accidental loss, destruction or damage, using appropriate
         technical or organisational measures


11.      Article 32 ("Security of processing") provides, in material part:



         1. Taking into account the state of the art, the costs of
        implementation and the nature, scope, context and purposes of
         processing as well as the risk of varying likelihood and severity
         for the rights and freedoms of natural persons, the controller and
         the processor shall implement appropriate technical and
         organisational measures to ensure a level of security appropriate

         to the risk, including inter alia as appropriate:

                    (a) the pseudonymisation and encryption of personal
                    data;

                    (b) the ability to ensure the ongoing confidentiality,
                    integrity, availability and resilience of processing
                    systems and services;

                                  3                                                               ICO.
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                       (c) the ability to restore the availability and access to
                       personal data in a timely manner in the event of a
                       physical or technical incident;

                       (d) a process for regularly testing, assessing and
                       evaluating the effectiveness of technical and
                       organisational measures for ensuring the security of

                       the processing.

           2. In assessing the appropriate level of security account shall be
           taken in particular of the risks that are presented by processing,
           in particular from accidental or unlawful destruction, loss,
           alteration, unauthorised disclosure of, or access to personal data
           transmitted, stored or otherwise processed.


The Commissioner's powers of enforcement



   12.     The Commissioner is the supervisory authority for the UK, as
      provided for by Article 51 of the GDPR.


   13.     By Article 57(1) of the GDPR, it is the Commissioner's task to

      monitor and enforce the application of the GDPR.

   14.     By Article 58(2)(d) of the GDPR the Commissioner has the power

      to notify controllers of alleged infringements of GDPR. By Article 58(2)(i)

      she has the power to impose an administrative fine, in accordance with
      Article 83, in addition to or instead of the other corrective measures

      referred to in Article 58(2), depending on the circumstances of each

      individual case.

   15.     By Article 83(1), the Commissioner is required to ensure that

      administrative fines issued in accordance with Article 83 are effective,

      proportionate, and dissuasive in each individual case. Article 83(2) goes
      on to provide that:




                                     4                                              •


                                             ICO.
                                             Information Commissioner'sOffice

When deciding whether to impose an administrative fine
and deciding on the amount of the administrative fine in
each individual case due regard shall be given to the
following:

      (a) the nature, gravity and duration of the
      infringement taking into account the nature scope or
      purpose of the processing concerned as well as the
      number of data subjects affected and the level of
      damage suffered by them;

      (b) the intentional or negligent character of the
      infringement;

      (c) any action taken by the controller or processor to
      mitigate the damage suffered by data subjects;


      (d) the degree of responsibility of the controller or
      processor taking into account technical and
      organisational measures implemented by them
      pursuant to Articles 25 and 32;

      (e) any relevant previous infringements by the
      controller or processor;

      (f) the degree of cooperation with the supervisory
      authority, in order to remedy the infringement and
      mitigate the possible adverse effects of the
      infringement;

      (g) the categories of personal data affected by the
      infringement;

      (h) the manner in which the infringement became

      known to the supervisory authority, in particular
      whether, and ifsoto what extent, the controller or
      processor notified the infringement;

      (i) where measures referred to in Article 58(2) have
      previously been ordered against the controller or
      processor concerned with regard to the same
      subject-matter, compliance with those measures;

      (j) adherence to approved codes of conduct pursuant
      to Article 40 or approved certification mechanisms
      pursuant to Article 42; and

                   5                                                              •


                                                              ICO.
                                                              Information Commissioner'sOffice

                     (k) any other aggravating or mitigating factor

                     applicable to the circumstances of the case, such as
                     financial benefits gained, or losses avoided, directly
                     or indirectly, from the infringement.


16.      The DPA contains enforcement provisions in Part 6 which are
   exercisable by the Commissioner. Section 155 of the DPA ("Penalty

   Notices") provides that:

               (1) If the Commissioner is satisfied that a person­


                     (a) has failed or is failing as described in section
                     149(2) ...

               the Commissioner may, by written notice (a "penalty
               notice"), require the person to pay to the Commissioner an
               amount in sterling specified in the notice.

               (2) Subject to subsection (4), when deciding whether to
               give a penalty notice to a person and determining the
               amount of the penalty, the Commissioner must have
               regard to the followingso far as relevant-

                     (a) to the extent that the notice concerns a matter to
                     which the GDPR applies, the matters listed in Article
                     83(1) and (2) of the GDPR.


17.      The failures identified in section 149(2) DPA 2018 are, insofar as

   relevant here:

               (2) The first type of failure is where a controller or
               processor has failed, or is failing, to comply with any of the
               following-

                     (a) a provision of Chapter II of the GDPR or Chapter
                     2 of Part 3 or Chapter 2 of Part 4 of this Act

                     (principles of processing);

                    ..,


                                   6                                                              ICO.
                                                              Information Commissioner'sOffice
                       (c) a provision of Articles 25 to 39 of the GDPR or
                      section 64 or 65 of this Act (obligations of controllers
                      and processors)[. ..]


Factual background to the incident



   18.     The origins of Mermaids lie in a parents' support group formed by
      parents whose children were experiencing gender incongruence. It

      was registered in 1999 with the Charity Commissioner. Mermaids was
      incorporated as a registered charity in 2015 and offers support to

      children, young people and their families in relation to gender non­

      conformity.


   19.     On 15 August 2016, which is the date on which the email group

      of relevance to the contraventions set out in this notice was created,
      the Chief Executive Officer ("the CEO") was at that date the only paid

      staff member at Mermaids. On 14 June 2019, Mermaids were notified

      by a service user of the charity that internal emails containing personal
      data were publicly available onlinMermaids contacted the

      Commissioner later that day to report the concerns. On 17 June 2019,
      the CEO telephoned the Commissioner to update her and sent a follow­

      up email detailing the remedial steps which Mermaids had taken.


Contraventions of Articles S(ll(fl, 32(1) (2) of the GDPR



   20.     In regard to the principle of integrity and confidentiality under
      Article (5)(l)(f) of the GDPR, the Commissioner considers that emails

      were processed by Mermaids on an email group without Mermaids

      applying the appropriate restricted access settings. If the appropriate
      security access settings had been applied, then access would have

      been restricted to approved members of the group only and it would
      not have been possible for third parties to gain unauthorised access

                                    7                                                            ICO.
                                                            Information Commissioner'sOffice
   through the internet to the emails containing personal data, in some
   cases concerning children and/ or in some cases containing special

   category data, in the period 25 May 2018 to 14 June 2019. In the

   interests of clarity, 25 May 2018 is the date on which GDPR became
   applicable in all member states, including the UK, and 14 June 2019 is

   the date on which the controller took steps to secure the email group in

   question.


21.      In regard to the requirement under Articles 32(1) and (2) of the

   GDPR to implement a level of security appropriate to the risk when
   processing data, the Commissioner considers that Mermaids failed to

   have adequate security measures in place to ensure the appropriate
   security for personal data in the period 25 May 2018 to 14 June 2019.

   The email group did not have the appropriate restricted access settings

   applied to it and therefore the personal data including the special
   category data were accessible to third parties. Consideration should

   have been given to pseudonymisation or encryption of the data, either

   of which would have offered an extra layer of protection to the
   personal data. Taking such a step may have reduced the opportunity

   for the emails to be placed at risk in circumstances where Mermaids'

   organisational memory had failed to account for the existence of the
   dormant email group after it stopped being used on 21 July 2017. For

   the avoidance of doubt, the Commissioner has concluded that the
   nature and gravity of the contraventions are unaffected by the

   unanswered question as to whether the journalist and third party

   stumbled across the data by accident or by any possibility, however
   remote, that individuals deliberately set out to find the information by

   using a precise and unusual syntactical search. Further, it is

   considered by the Commissioner that the nature of the contraventions
   is unaffected by the unanswered question as to the extent to which any

   other third party or parties accessed the data.

                                  8                                                             ICO.
                                                             Information Commissioner'sOffice

   22.     The contraventions by Mermaids between 25 May 2018 and 14

      June 2019 involved personal data which in some cases included special

      category data and/ or data which was sensitive in its context. The
     incident involved data which in many cases belonged to children and/

      or vulnerable individuals. It involved a large group of 550 data

      subjects and around 24 data subjects whose data was sensitive in its
      context and/ or belonged to children and/ or belonged to vulnerable

      individuals. It has been confirmed in the course of Representations that

      of those 24 data subjects whose data could be said to be sensitive in
      context, and/ or belonged to children or vulnerable individuals, 15 of

      the data subjects had special category data accessible. The sensitive
      nature of the data which was accessible to third parties means that the

      contraventions necessarily involved significant damageand/ or

      distress to the data subjects, whether or not it was also special
      category data. The Commissioner has not taken account of any

     contraventions which may have occurred between 15 August 2016

      (i.e., the date of creation of the email group) and 25 May 2018 but has
     had regard to how the failure first arose and persisted. The

      Commissioner considers the contraventions to have been negligent.


Notice of Intent


   23.     On 19 March 2021, in accordance with s.55(5) and paragraphs

      2 and 3 of Schedule 16 DPA 2018, the Commissioner issued Mermaids

      with a Notice of Intent to impose a penalty under s.155 DPA 2018. The
      Notice of Intent described the circumstances and the nature of the

      personal data in question, explained the Commissioner's reasons for a

      proposed penalty, and invited written representations from Mermaids.




                                    9                                                               ICO.
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   24.     On 20 April 2021, Mermaids provided written representations in

      respect of the Notice, together with a supporting document.


   25.     On 17 May 2021 the Commissioner held a 'representations
      meeting' to thoroughly consider the representations provided by

      Mermaids.


Factors relevant to whether a penalty is appropriate, and if so, the

amount of the penalty


   26.     The Commissioner has considered the factors set out in Article

      83(2) of the GDPR in deciding whether to issue a penalty. For the reasons

      given below, she is satisfied that (i) the contraventions are sufficiently
      serious to justify issuing a penalty in addition to exercising her corrective

      powers; and (ii) the contraventions are serious enough to justify a

      significant fine.


   27.      In regard to the amount of the penalty, the Commissioner has

      considered the following facts:   Mermaids' total income rose from
                                                 1
      £317,580 in the year ending 31 March 2018 , to £715,330 in the year
      ending 31 March 2019, to £902,440 in the year ending 31 March 2020.

      The Commissioner is mindful that the penalty must be effective,

      proportionate and dissuasive.



(al   the nature, gravity and duration of the infringement taking into

account the nature, scope or purpose of the processing concerned as




1
 https://register-of-charities.charitycommission.gov.uk/charity-search/-/charity-details/5054976/financial­
history


                                     10                                                               ICO.
                                                               Information Commissioner'sOffice
well as the number of data subjects affected, and the level of
damage suffered by them



   28.     Nature: The CEO set up an internet-based email group service
      at https: /groups.io, which is overseen by a third party based in the

      United States of America ("the USA"). In particular, the CEO created

      Generalinfo@Groups.IO so that emails could be shared between the
      CEO and the 12 trustees. An absence of records relating to the

      creation of the group and the controls that were considered at that

      time has meant that it has been impossible to establish exactly how
      the group service was set up, and therefore how the incident

      originated. The CEO is unable to recall whether the emails were left
      accessible deliberately to facilitate a general discussion or whether it

      was an oversight not to select a more secure option and to leave a

      default security setting in operation. However, after being made aware
      that the emails were accessible, Mermaids established that the default

      setting for security and privacy on the Groups.IQ internet-based email

      service provided, "Group listed in directory, publicly viewable
      messages," which was an insecure and inappropriate setting.

      Alternative settings available to users of the email service were,

      "Group not listed in directory, publicly viewable messages,", "Group
      listed in directory, private messages," and, "Group not listed in

      directory, private messages," which, if selected, may have provided
      more appropriately secure settings.



   29.     The Groups.IQ internet-based email group service was in active
      use by Mermaids from 15 August 2016 to 21 July 2017. After it

      became dormant it nevertheless continued to hold emails. Mermaids'

      failure to implement appropriate security settings meant that the email
      group was listed in the Groups.IQ search directory and was indexed on

      large search engines such as Google. In addition to communications

                                    11                                                            ICO.
                                                            Information Commissioner'sOffice
   between the trustees, the emails included some forwarded emails from
   Mermaids' service users. Mermaids failed to implement an appropriate

   level of security to its internal email systems, which resulted in

   documents or emails containing personal data, including in some cases
   relating to children and/ or including in some cases special category

   data, being searchable and viewable online by third parties through

   internet search engine results. Mermaids was unaware that it had
   failed to implement an appropriate level of security or that personal

   data of its service users was searchable and viewable online by third

   parties.


30.     The last email on the Groups.IQ service was sent on 21 July
   2017. Nevertheless, the email group remained live and the emails

   remained publicly visible on the Groups.IQ website until remedial

   actions were taken in June 2019.


31.     On 14 June 2019, a service user of the charity, who was the

   mother of a gender non-conforming child, informed the CEO that she
   had been called by a journalist from the Sunday Times, who had told

   her that her personal data could be viewed online. The journalist had

   informed the parent that by searching online he could view confidential
   emails, including her child's current name, the child's "dead name", the

   date of birth, the mother's maiden name and married name, her
   employer's address, her mobile telephone number and details of her

   child's mental and physical health. On the same day, Mermaids

   received pre-publication notice from the Sunday Times that the emails
   were accessible online and the newspaper would be publishing an

   article about the incident. Mermaids are understood to have taken

   immediate steps to block access to the email site before the newspaper
   report of the incident was published.



                                 12                                                                 ICO.
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   32.      Gravity: The topic of gender incongruence is still regarded, by

      many commentators and members of the public, to be controversial,

      and the fact that a child or adult may be experiencing gender
      incongruence is a sensitive issue which can lead to increased

      vulnerability. The Commissioner considers that the likely increased

      vulnerability of a data subject in turn increases the risk of damage or

      distress being caused to the data subject by any data contravention
      that reveals that an individual is seeking information about, or support

      for, gender incongruence. The Commissioner considers that the data

      about gender incongruence was sensitive in its context. The
      Government ran a consultation on reform of the Gender Recognition

      Act 2004 between July and October 2018, which generated widespread

      public interest in and debate about gender incongruence. Groups

      supporting transgender rights and people experiencing gender
      incongruence may be at a higher risk of experiencing prejudice,

      harassment, physical abuse or hate crime. According to the Home
                                                             2
      Office Hate Crime report published on 15 October 2019  , transgender
      identity is the least commonly recorded hate crime, however, in 2018 it

      increased by 37%. The large percentage increase may be due to the

      relatively small number of transgender identity hate crimes of 2,333

      during the 2018-2019 period, improvements by the police in identifying
      and recording such crimes, more people coming forward to report the

      crimes, or a genuine increase in transgender hate crimes. The

      Commissioner has had regard to such risks when considering the
      potential harm that may be caused to affected data subjects.



   33.      In regard to 15 data subjects, the emails included special

      category data, such as details of the data subject's mental or physical



hate-crime-1819-hosb2419.pdfrvice.gov.uk/government/uploads/system/uploads/attachment_data/fi le/839172/


                                      13                                                         ICO.
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   health and/ or sex life and/ or sexual orientation, with a further 9
   data subjects whose data could be classified as sensitive in context.

   Four of those 24 data subjects were aged 13 or under in June 2019

   and therefore must have been aged 12 or under in the period between
   25 May 2018 and 14 June 2019.











35.     Duration: The Commissioner has been unable to confirm the
   exact duration of the contraventions. However, given the age of some

   of the data, she is satisfied that it has been occurring, to some extent,

   since at least 25 May 2018, and she has not considered any
   contravention prior to this date, which would fall to be considered

   under the previous data protection regime. The Commissioner

   considers that Mermaids was in contravention of the GDPR from the
   date on which it came into force on 25 May 2018 until the issue was

   remedied by 14 June 2019.


36.     Number    of  data   subjects  affected:  The  Commissioner

   understands that around 780 pages of confidential emails were visible
   online, which included sensitive data relating to gender incongruence

   and personal data relating to 550 data subjects, such as name, email

   address, job title, or employer's name.


37.     Damage: It has not been possible to establish whether or not the

   data which was exposed online was accessed by third parties other than
   the Sunday Times journalist. Two data subjects, a mother and a child,



                                14                                                          ICO.
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   made   complaints  to  Mermaids   about   the  contraventions.  The

   Commissioner also received two complaints.


38.     It is reported that 550 emails were accessible and could be viewed

   online from August 2016 until 14 June 2019. They contained personal
   data such as names, emails address, job title, employer's name which

   identified individuals and their connection with the transgender charity.

   It can be inferred that the individuals whose email addresses were on
   the group are users of Mermaids, who are a transgender charity, that

   their data would be sensitive data in context. Most of the email threads

   contained general discussions, for example, concerning fundraising,
   arranging attendance at conferences and advice about anti-bullying, and

   the data subjects were open about their connection with Mermaids.

   Twenty-four emails have been identified by Mermaids as being of a
   higher risk, containing more sensitive details within conversations

   between the CEO, stakeholders and subscribers of Mermaids and

   included discussions of transgender issues and how the data subjects
   were feeling and coping with their experiences. Four of these emails

   related to data subjects who were aged 13 or under as of June 2019.

   With the introduction of the GDPR, children should be afforded more
   protection in relation to their data.



39.     If someone had accessed the email group online there would have
   been sufficient available identifying data to potentially "out" the data

   subject, removing any choice and infringing their privacy.


40.     Due to the nature of the services offered by the Mermaids charity,

   being an organisation who offer support to transgender individuals, the

   Commissioner expected them to ensure stringent safeguards were in
   place to protect service users and their personal data. Mermaids received

   four complaints from former trustees and two from service users. All

                                 15                                                             ICO.
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      complaints have been resolved.







(bl   the intentional or negligent character of the infringement


   41.     By 25 May 2018, Mermaids was a well-established significant

      charity and should have implemented appropriate measures to ensure
      that personal data was safeguarded, particularly since the data in some

      cases related to vulnerable children and/ or vulnerable adults and/ or
      included special category data and/ or a significant proportion of data

      was sensitive in its context. In the period 25 May 2018 to 14 June

      2019, there was a negligent approach towards data protection at
      Mermaids, data protection policies were inadequate and there was a

      lack of adequate training, including a lack of face-to-face training, on

      data protection. Following the introduction of the GDPR, Mermaids'
      data protection policies had not been updated to ensure compliance.

      Safeguards should have been in place to protect the young and/ or
      vulnerable data subjects who had used or were using the charity's

      services, particularly given the probability that personal data controlled

      or processed by Mermaids would include special category data and/ or
      data which was sensitive in its context.


   42.     The Commissioner considers that the contraventions were not

      deliberate, although there is an element of negligence as the CEO

      created the email group with the least secure settings in error. This
      was compounded by the fact the CEO, not nor any other person

      associated with the charity, did not correctly close down the email
      group, thereby leaving it accessible, albeit dormant.



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(cl  any action taken by the controller or processor to mitigate the
damage suffered by data subjects


  43.    As soon as Mermaids were made aware, by the service user, that

     the email group was accessible, the charity immediately took the email
     group down and took proportionate action to ensure any data collected
     was removed from any archive website.








    -


(dl  the degree of responsibility of the controller or processor taking
into account technical and organisational measures implemented by

them pursuant to Articles 25 and 32


  45.    All Mermaids staff and volunteers received mandatory data
     protection training in December 2018, which is updated annually,
     however, the ongoing contraventions were not identified by anyone at

     Mermaids during the period of operation of the insecure email system,
     which demonstrates that the training was inadequate and/ or

     ineffective.


  46.    The CEO of Mermaids created the email group with the least
     secure settings. Even though it was created in 2016 which would have
     been covered by the Data Protection Act 1998, the group remained live

     and accessible until June 2019, with the same settings that were
     applied on its creation in 2016. The settings were the least secure and

     allowed access to the email group and the contents of the emails were

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      viewable online. When the use of the email group ceased there was no
      clear documentation to demonstrate how it was created or

      decommissioned. The email group remained dormant but accessible

     and appears to have been forgotten.


   47.     In addition to the change in data protection legislation such as

     the introduction of the GDPR, the Government consultation concerning
     the Gender Recognition Act 2004 ("GRA") and associated public debate

     on gender incongruence should have prompted Mermaids to re-visit

     their policies and procedures to ensure appropriate measures were in
     place to protect individuals' privacy rights.



(el   any relevant previous infringements by the controller or
processor


   48.     The Commissioner is unaware of any previous data protection

      infringements by Mermaids.


(fl   the degree of cooperation with the supervisory authority, in

order to remedy the infringement and mitigate the possible adverse

effects of the infringement


   49.     Mermaids were co-operative and replied to the enquiries
      promptly. They employed both solicitors and a data protection

      consultant to review the incident and to oversee any remedial action.

      Mermaids also instructed a specialist media law firm on 14 June 2019.
     They received four complaints from former trustees and two from

     service users - all of which have been concluded.


   50.     Mermaids immediately adjusted the settings on the Groups.IQ

      website so that the data was no longer accessible to third parties.

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   Mermaids staff began reviewing all the emails which had been exposed
   to viewing by third parties. Mermaids also reported itself to the

   Commissioner on 14 June 2019.


51.     On 15 June 2019,

                                                       The same day,

   the Sunday Times printed an online article stating that 1,000 pages of
   confidential emails by Mermaids were available on the 10 platform

   which had been active between 2016 and 2017 and could be viewable

   online. The same day, Mermaids informed an initial number of data
   subjects, whom it regarded as "sensitive data subjects", and for whom

   Mermaids had contact details, about the incident. Also on 15 June
   2019, Mermaids published a press statement on its website which

   included an apology. Also on 15 June 2019, Mermaids notified the

   Charity Commission of the existence of a serious risk incident. Also on
   15 June 2019, Mermaids liaised with Groups.IQ to obtain metadata to

   identify when the relevant data had been accessed by third parties and

   Mermaids were told by Groups.IQ that they did not collect that
   metadata.



52.     On 16 June 2019, a printed article was published in the hard
   copy Sunday Times, drawing attention to the matter. Also on 16 June

   2019, Mermaids notified all former trustees and major funders of the
   incident; and took initial steps to transition its email service to a more

   secure email platform.


53.     On 17 June 2019, Mermaids engaged a data protection

   consultant. Also on 17 June 2019, Mermaids updated the Charity

   Commission about the incident.




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54.     On 18 June 2019, Mermaids learnt that various archived or
   cached versions of the data remained online, and therefore their

   solicitors requested Google to remove them, and the data were

   immediately removed. Similar steps were taken by Mermaids to
   remove data from Archive.Ii. The same day, Mermaids sent the

   Commissioner an update.


55.     On 19 June 2019, Mermaids liaised with Groups.IQ to request

   information regarding users making requests of the Mermaids' group's
   archives. Three further data subjects were identified by Mermaids as

   "sensitive data subjects". Mermaids continued its efforts to remove
   access to the data via Archive.Ii.



56.     On 20 June 2019, the three additional "sensitive data subjects"
   were notified of the incident. Legal advisors to Mermaids reviewed

   with staff the current data systems at Mermaids for any further areas
   of vulnerability. The same day, Mermaids instructed their solicitors to

   begin liaising with the "sensitive data subjects".


57.     On 21 June 2019, Groups.IQ confirmed that they did not hold

   any relevant information in their logs. The same day, Mermaids

   engaged an information technology security auditor, to begin to review
   the incident on 27 June 2019.














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58.     On 22 June 2019, - confirmed that the data had been

   removed. Mermaids' solicitors contacted all the "sensitive data

   subjects" to explain the remedial steps which had been taken and
   provided copies of their data which had been affected. They also

   sought permission from the data subjects whose data had been

   uploaded on Archive.Ii to contact Archive.Ii on their behalf to seek
   removal of their data.




59.      Between 24 June 2019 and 25 June 2019, the law firm obtained

   all the consents required from the data subjects to remove the data
   from Archive.Ii and sent compliance notices to Archive.Ii and its

   webhost, copied to their local data protection authorities. Mermaids

   held a trustee meeting to provide an update to trustees on the
   remedial steps which had been taken to address the contraventions,

   with Mermaids' external legal advisers in attendance.


60.     On 26 June 2019, Mermaids updated their website message to

   include reference to Archive.Ii.


61.     On 27 June 2019, two additional "sensitive data subjects" were

   identified by Mermaids, they were updated on the remedial steps which
   had been taken and they were sent copies of the personal data which

   had been exposed. On the same day, Mermaids was alerted to the fact

   that a larger group of data subjects had been affected by the incident.
   On Mermaids' instruction, the solicitors then reviewed all the data

   which had been accessible online to ensure all remedial actions had

   been taken. Mermaids, through their lawyers, notified the
   Commissioner and also chased the Sunday Times for a substantive

   response to their letter of 21 June 2019.

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   62.     On 28 June 2019, Mermaids' solicitors updated the "sensitive

      data subjects" whose data had been uploaded to Archive.Ii to confirm

      that the relevant webpages had been removed. They also sent an
      update to the Commissioner; continued to review the data; wrote

      seeking further information from Groups.IQ, if available, about the

      extent of any third-party access to the data in question; and updated
      the Commissioner on what remedial actions had been taken.



   63.     On 25 July 2019, the CEO completed half a day of data
      protection training from an external trainer, in response to the

      contraventions.


   64.     The Commissioner understands that the specialist data

      consultant appointed by Mermaids completed a review of all Mermaids'
      data systems and policies to ensure they were compliant with the

      GDPR and that Mermaids undertook to implement all his

      recommendations. The Commissioner understands that the
      contravention has been identified as an isolated incident and no wider

      issues were identified during the review. Further, it appears that all

      policies at Mermaids have now been updated to conform to the GDPR
      and that Mermaids undertook to put all data protection policies on one

      place on the intranet where they would be easily accessible to all staff
      and volunteers. Further, a security assessment was undertaken by a

      specialist consultancy, over a three-week period in June to July 2019,

      involving a review of all systems and processes at Mermaids to assess
      security and access controls, recommendations were made,

      implementation was agreed and the recommendations were then

      implemented by Mermaids to strengthen security and privacy.


(gl   the categories of personal data affected by the infringement

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   65.     These include information allowing identification of individuals,

     including children; in some cases the data was sensitive in context

     relating to gender incongruence, and in some cases it was special
     category data, including data relating to health.


   66.     The email addresses identified 550 data subjects, all of whom had

     been in contact with Mermaids at some point. Due to the nature of the

     services offered by Mermaids it can be inferred that some of data of
     those individuals can be identified as special category data. 24 have been

     identified by Mermaids as being of a higher risk, containing more
     sensitive details with conversations between the CEO, stakeholders and

     subscribers of Mermaids and included discussions around transgender

     issues and how the data subjects were feeling and coping with their
     experiences. 15 of those 24 data subjects had special category data

     accessible. Some of the emails show an exchange with Tavistock and
     Portman NHS Foundation Trust, who run a gender identity clinic. These

     emails disclose health information. 4 of those 24 data subjects were

     under 13 as of June 2019.


(hl   the manner in which the infringement became known to the
supervisory authority, in particular whether, and if so to what extent,

the controller or processor notified the infringement


   67.     Mermaids notified the Commissioner about the infringement on











                                   23                                                            ICO.
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                              Mermaids reported themselves to the

      Commissioner on the same day.


(il   where measures referred to in Article 58(2) have previously

been ordered against the controller or processor concerned with
regard to the same subject-matter, compliance with those measures;


   68.     Not applicable.



(j)   adherence to approved codes of conduct pursuant to Article 40
or approved certification mechanisms pursuant to Article 42;


   69.     Not applicable.



(kl   any other aggravating or mitigating factor applicable to the
circumstances of the case, such as financial benefits gained, or

losses avoided, directly or indirectly, from the infringement.


   70.     An aggravating factor is the duration of the infringement from

      2017 to 2019.


   71.     Since 2016, Mermaids has raised its profile and in recent years it

      has received funding from various sources, including from the National
      Lottery, Children in Need and the Government. These factors have

      contributed to an increase in the public attention which Mermaids
      receives and the good standing from which it has benefited.

     Regulatory action against Mermaids will serve as an important

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     deterrent to other entities or persons who are not complying or who
     are risking not complying with their duties under the GDPR.



   72.     The Commissioner has taken account of the prompt remedial
     actions taken by Mermaids in response to becoming aware of the

      incident, which reduced the detriments caused to the data subjects,

     and of Mermaids' co-operation with the Commissioner.


   73.     Mermaids' profile significantly increased after being linked to a

     television programme. This breach was highlighted in a national
     newspaper and that resulted in a degree of reputational damage to the

      charity. The Commissioner considers that whilst the fine itself should
     act as a deterrent, it was important to balance this against ensuring

     the charity is able to maintain effective provisions for service users nor

     taking away donations made by the public.


   Summary and decided penalty


   74.     For the reasons set out above, the Commissioner has decided to
     impose a financial penalty on Mermaids. The Commissioner has taken

     into account the size of Mermaids and the financial information which is

     available about the charity on the Charity Commission website, as well
     as the representations that Mermaids has made to her about its

     financial position. She is mindful that the penalty must be effective,

     proportionate and dissuasive.


   75.     Taking into account all of the factors set out above, the

      Commissioner has decided to impose a penalty on Mermaids of
      £25,000 (twenty-five thousand pounds).


Payment of the penalty


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76.      The penalty must be paid to the Commissioner's office by BACS

   transfer or cheque by 3 August 2021 at the latest. The penalty is not
   kept by the Commissioner but will be paid into the Consolidated Fund

   which is the Government's general bank account at the Bank of

   England.


77.      There is a right of appeal to the First-tier Tribunal (Information

   Rights) against:

         (a)   The imposition of the penalty; an/or,

         (b)   The amount of the penalty specified in the penalty notice


78.      Any notice of appeal should be received by the Tribunal within 28
   days of the date of this penalty notice.



79.      The Commissioner will not take action to enforce a penalty
   unless:



      •  the period specified within the notice within which a penalty must
         be paid has expired and all or any of the penalty has not been

         paid;

      •  all relevant appeals against the penalty notice and any variation
         of it have either been decided or withdrawn; and

      •  the period for appealing against the penalty and any variation of

         it has expired


80.      In England, Wales and Northern Ireland, the penalty is

   recoverable by Order of the County Court or the High Court. In

   Scotland, the penalty can be enforced in the same manner as an
   extract registered decree arbitral bearing a warrant for execution

   issued by the sheriff court of any sheriffdom in Scotland.


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   81.    Your attention is drawn to Annex 1 to this Notice, which sets out
     details of your rights of appeal under s.162 DPA 2018.


Dated the 5 day of July 2021


Stephen Eckersley
Director of Investigations
Information Commissioner's Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 SAF






























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ANNEX 1


        Rights of appeal against decisions of the commissioner


1.    Section 162 of the Data Protection Act 2018 gives any person upon

      whom a penalty notice or variation notice has been served a right of

      appeal to the First-tier Tribunal (Information Rights) (the 'Tribunal')
      against the notice.



2.    If you decide to appeal and if the Tribunal considers:-


      a)   that the notice against which the appeal is brought is not in
           accordance with the law; or



      b)   to the extent that the notice involved an exercise of discretion by
           the Commissioner, that she ought to have exercised her

           discretion differently,


      the Tribunal will allow the appeal or substitute such other decision as

      could have been made by the Commissioner. In any other case the

      Tribunal will dismiss the appeal.


3.    You may bring an appeal by serving a notice of appeal on the Tribunal
      at the following address:



           GRC & GRP Tribunals
           PO Box 9300
           Arnhem House
           31 Waterloo Way
           Leicester
           LEl 8DJ

           Telephone: 0203 936 8963
           Email:
                      grc@justice.gov.uk
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      a)   The notice of appeal should be sent so it is received by the

           Tribunal within 28 days of the date of the notice.


      b)   If your notice of appeal is late the Tribunal will not admit it

           unless the Tribunal has extended the time for complying with this
           rule.


4.    The notice of appeal should state:-



      a)   your name and address name and address of your representative
           (if any);



      b)   an address where documentsmay be sent or delivered to you;


      c)   the name and address of the Information Commissioner;


      d)   details of the decision to which the proceedings relate;


      e)   the result that you are seeking;



      f)   the grounds on which you rely;


      g)   you must provide with the notice of appeal a copy of the penalty
           notice or variation notice;



      h)   if you have exceeded the time limit mentioned above the notice
           of appeal must include a request for an extension of time and the

           reason why the notice of appeal was not provided in time.




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5.   Before deciding whether or not to appeal you may wish to consult your
     solicitor or another adviser. At the hearing of an appeal a party may

     conduct his case himself or may be represented by any person whom
     he may appoint for that purpose.


6.   The statutory provisions concerning appeals to the First-tier Tribunal
     (General Regulatory Chamber) are contained in sections 162 and 163

     of, and Schedule 16 to, the Data Protection Act 2018, and Tribunal
     Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules

     2009 (Statutory Instrument 2009 No. 1976 (L.20))































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