The security of banks’ and other financial institutions’ websites has been in the spotlight recently, notably in the case of NatWest bank which was involved in a public discussion regarding its site. Below Jacob Ghanty, Head of Financial Regulation at Kemp Little LLP, discusses the legal implications of website security, along with the potential consequences and of course some solutions to follow up on.
Importance of bank website security
With the diminishment of the physical branch networks that UK banks have maintained traditionally, banks’ online services are a fundamental means through which they deliver core banking services to their customers.
In the case of NatWest, a security expert identified that the bank was not using an encrypted https (Hypertext Transfer Protocol Secure) connection for a customer-facing website (in contrast with its connection for online banking services). The security expert suggested that hackers could redirect site visitors away from NatWest to other sites using similar names. NatWest stated that it would work towards upgrading to https within 48 hours.
Legal obligation to protect customer data
This type of issue is not new and has affected other banks as well. As long ago as 2007, the Information Commissioner’s Office (ICO) named and shamed 11 banks for unacceptable data security practice.
From a data privacy law perspective, under current legislation (the Data Protection Act 1998 (DPA)) organisations are required to have appropriate technical and organisational measures in place to protect data against unauthorised or unlawful processing, and against accidental loss or destruction of or damage to personal data (data security breach). The DPA does not define “appropriate technical and organisational measures” but the interpretive provisions state that, to comply with the seventh data protection principle, data controllers must take into account the state of technical development and the cost of implementing such measures. Moreover, security measures must ensure a level of security appropriate to both: the harm that might result from such a data security breach; and the nature of the personal data to be protected.
From a financial services regulatory perspective, banks are subject to a requirement in the Prudential Regulation Authority Rulebook to: “…establish, implement and maintain systems and procedures that are adequate to safeguard the security, integrity and confidentiality of information, taking into account the nature of the information in question. … a firm must have sound security mechanisms in place to guarantee the security and authentication of the means of transfer of information, minimise the risk of data corruption and unauthorised access and to prevent information leakage maintaining the confidentiality of the data at all times.” Breach of this and related rules (including a requirement to implement adequate systems and controls to monitor and detect financial crime) would leave banks open to disciplinary action.
The importance of an HTTPS connection
Any data sent between a customer’s device and a website that utilises https is encrypted and accordingly unusable by anyone intercepting that data unless they hold the encryption key. Without https protection, hackers could, in principle, alter a bank’s website and re-direct users to a fake or “phishing” website where their data could be stolen. Phishing sites are designed to appear like a bank’s own website to lure customers to disclose their personal data. Many such sites are quite sophisticated (incorporating fake log-in mechanisms, and so on) and present genuine risks to customers’ data.
Legal and financial consequences for banks who fail to protect their customers’ data
From a data privacy law standpoint, the ICO has the power to impose financial penalties on data controllers of up to £500,000 for a serious breach of the data protection principles. For example, in October 2016, the ICO imposed a £400,000 fine on TalkTalk for a breach of the seventh data protection principle.
The EU’s General Data Protection Regulation (GDPR) will take effect from 25 May 2018. The GDPR will impose stricter obligations on data controllers than those that apply under the DPA. The GDPR will significantly increase maximum fines for data controllers and processors in two tiers, as follows: up to 2% of annual worldwide turnover of the preceding financial year or 10 million euros (whichever is the greater) for violations relating to internal record keeping, data processor contracts, data security and breach notification, data protection officers, and data protection by design and default; and up to 4% of annual worldwide turnover of the preceding financial year or 20 million euros (whichever is the greater) for violations relating to breaches of the data protection principles, conditions for consent, data subjects’ rights and international data transfers.
Key next steps for banks to protect financial and customer data
There are several obvious steps that banks can take to protect financial and customer data including carrying out a cyber security audit, maintaining adequate detection capabilities and putting in place recovery and response systems to enable them to carry on in case of an unexpected interruption.
There are number of useful sources of information in this area including: the FCA’s speech in September 2016 on its supervisory approach to cyber security in financial services firms; various ICO guides on information security; the FCA’s Financial Crime Guide; and the FSA’s Thematic Review Report on data security in the financial services sector of April 2008.