Article 22(1) GDPR states: The data subject shall have the right to not be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.
Commenting on the government’s original controversial algorithm, Jamie Mitchell, a paralegal in CEL Solicitors’ data breach team, said:
“It would appear that the algorithm breached the rights of students who had been adversely affected by last Thursday’s results.
“This would potentially have allowed students to make a claim under Article 82 GDPR, especially as the non-material damage caused by the debacle is very much apparent and would have allowed students to exercise the right and compel OFQUAL and the exam boards to make a decision that was not based on automated processing.
“However, Article 22(3) does allow for human intervention, so I am sure that OFQUAL and the exam boards would have been quick to state that there was a significant degree of manual data input and thus try to distance themselves from breaching this right”.
An ICO spokesperson had said at the time: “We understand how important A-level results and other qualifications are to students across the country. When so much is at stake, it’s especially important that their personal data is used fairly and transparently.
“We have been engaging with Ofqual to understand how it has responded to the exceptional circumstances posed by the Covid-19 pandemic, and we will continue to discuss any concerns that may arise following the publication of results.
“The GDPR [General Data Protection Regulation] places strict restrictions on organisations making solely automated decisions that have a legal or similarly significant effect on individuals. The law also requires the processing to be fair, even where decisions are not automated.
“Ofqual has stated that automated decision-making does not take place when the standardisation model is applied, and that teachers and exam board officers are involved in decisions on calculated grades. “
Hopefully, the U-turn has brought the matter to the close. However the conflict between dealing with a global pandemic and protecting data subjects’ rights continues to rage on.