On 12 September 2023, the UK Information Commissioner, John Edwards, and the Chief Executive of the National Cyber Security Centre (“NCSC”), Lindy Cameron, signed a joint memorandum of understanding (“MoU”) detailing how the Information Commissioner’s Office (“ICO”) and NCSC will work together moving forward.
The MoU does not create legally binding obligations between the ICO and NCSC, but provides a strong signal of intent for areas of cooperation. The statements about information sharing and engaging with NCSC leading to potentially reduced fines under the UK GDPR are likely to be of particular interest to commercial organizations.
Areas of Cooperation
The ICO and NCSC have committed to working together in the following areas:
- Cyber Security Guidance: Both parties will work together to support the development of guidance, including the NCSC’s Cyber Assessment Framework, and encourage adoption by industry;
- Regulated Organizations: The NCSC will support continuous improvement in cyber security amongst the organizations that the ICO regulates by, for example, providing technical advice to the ICO regarding cyber security risk management;
- Information Sharing: To help encourage organizations to approach NCSC the MoU makes the following point about information sharing:
“For the avoidance of doubt, the NCSC will not share information from an organisation it is engaged with due to a cyber incident with the Commissioner unless it has the consent of the organisation to do so. Disclosure of such information to the Commissioner, without consent, may be a breach of the duty of the Director of GCHQ set out in section 4(2) of the Intelligence Services Act 1994, which requires that no information is disclosed by GCHQ except so far as it is necessary for the proper discharge of GCHQ’s statutory functions or for the purpose of any criminal proceedings.”
The MoU states that the “NCSC and the Commissioner will share information to the extent permitted by law”, including in relation to “relevant cyber threat information with the Commissioner, including cyber threat assessments that are likely to affect Relevant Digital Service Providers (as defined under the NIS Regulations) and other organisations regulated by the Commissioner.”
ICO will share information about cyber security incidents with the NCSC on an anonymous, systemic and aggregate basis. The ICO may also share specific details relating to an incident of national significance;
- Direct NCSC Support: The NCSC will support the ICO’s own cyber security by providing technical tools and guidance, including if the ICO is subject to a serious cyber security incident;
- Deconfliction: The MoU makes it clear that “where organisations report an incident to the NCSC and the NCSC identifies that the case may be legally reportable to Commissioner, the NCSC will remind organisations to be mindful of their regulatory obligations, but will not opine on whether an organisation may be under an obligation to notify nor make notifications to the Commissioner on the organisation’s behalf .” Where the ICO and NCSC are both engaged on a cyber security incident, they will endeavor to minimize disruption to the affected organization’s ability to mitigate harm. Helpfully, the MoU recognizes that “the Commissioner’s incident response phase will seek to make sure organisations are able to prioritise engagement with the NCSC and/or its cyber incident response providers in the immediate aftermath of an incident to prioritise the mitigation of harm, identify the root cause of the incident, and take appropriate steps to prevent the incident reoccurring.” Where it is necessary to involve different entities within the UK government, the NCSC will lead the coordinated response in its role as national technical authority (alongside other government departments where appropriate); and
- Public Communications: The ICO and NCSC will agree press releases in advance concerning incidents that involve both parties.
The ICO has committed under the MoU “on an increasing basis, [to] continue to recognize and incentivize appropriate engagement with the NCSC on cyber security matters,” including recognizing organizations that report to and work with the NCSC following a significant cyber incident.
Specifically, the ICO has agreed to publicize (on its website, in guidance, and in relevant press releases) that it “looks favorably” on “victims of nationally significant cyber incidents who report to and engage with the NCSC,” and that it will “consider whether it can be more specific on how such engagement might factor into its calculation of regulatory fines.” An accompanying press release clarified that the ICO has committed to “exploring how it can transparently demonstrate that meaningful engagement with the NCSC will reduce regulatory penalties”.
The ICO and NCSC have agreed to monitor the operation of the MoU and review its provisions every two years.
Will Capstick of Covington & Burling LLP contributed to the preparation of this article.