The Information Commissioner has called for the commencement of the custodial element of the section 55 offences and expressly criticised data protection compliance by local authorities as being “very bad”. He also criticised data controllers, especially in banks and financial services, as being uncooperative in relation to consensual data protection audits. He also anticipates that agreement over the text of a forthcoming data protection directive will be protracted and will take “years”.
These points were made in a wide ranging questioning by the House of Commons, Justice Select Committee at a hearing yesterday.
The Commissioner made an impassioned plea for Parliament and Government to commence the custodial element of the section 55 offence in order to make sure the panoply of the legal penalties would be available to the Courts. Currently, the Commissioner complained that because a fine was the only penalty that could be imposed, this meant that other non-custodial penalties were unavailable to the Courts (e.g. community service orders).
This emphasis on non-custodial sentences is politically adroit. First, it does not involve custodial sentences, as the Government wants to reduce the prison population. Secondly, the Commissioner is reminding Parliament that they can separate the issue of generally strengthening the section 55 offence, from the specific Special Purpose problems which can be properly left to the Leveson Inquiry (into phone hacking by journalists).
The Commissioner also revealed that the Government is thinking of making the section 55 offence a “recordable offence”. This would mean that anyone prosecuted under the Act would have an entry on the DNA database for their lifetime. The Commissioner also noted that even under the current arrangements, the fine is a maximum £5,000, the going rate is about £100 to £150 per offence. This level of fine, he stated, was no deterrent at all.
The Commissioner stated that he has no powers of audit except in limited circumstances and made a plea for a general power of inspection in circumstances where there was reasonable cause to believe that data protection compliance was deficient. Currently only one in five data controllers agree to a consensual audit; the Commissioner strongly suggested that the financial services sector would be a focus if such powers were granted.
The Commissioner expressly pointed to the offence involving a Barclays Bank employee (see references: this deals with the S.55 prosecution of a bank employee, married to a person prosecuted for a sexual offence, who accessed the financial records of the victim to check on her spending habits). In this context, he expressly regretted that private sector data controllers are “backwards in coming forward” to volunteer for a data protection audit. The Commissioner cannot understand why the offer of a “free audit” is rejected by 80% of data controllers; in the context of the high street banks, the Commissioner called this stance “short sighted”.
The Commissioner recommended that “mystery shoppers” should be employed, especially in the area of disclosure. So if your organisation is employing penetration testing in relation to its security compliance, it might be useful to check whether disclosure procedures form part of those tests.
In relation to the forthcoming new text of the Directive, the Commissioner:
• expected it to be published in November or December
• used the term “Framework Directive” – this implies that there will not be a Regulation to implement any new data protection rules
• wanted a “principle based” approach – this would mean that in any new legislation, the Commissioner would have more flexibility in relation to interpretation and enforcement of those principles in the light of technological developments
• focused on the Accountability Principle as being especially important; this Principle would firmly embed data protection into information governance structures
• expected that it would contain a power of inspection and audit
• expected that the negotiations over the text would take “years”
• is holding a conference in the Spring to engage with data protection stakeholders.
References
Barclays bank employee: http://www.ico.gov.uk/news/latest_news/2011/cashier-spied-on-sex-attack-victims-bank-records-13092011.aspx
To see the ICO’s evidence session: http://www.parliamentlive.tv/Main/Player.aspx?meetingId=9020 (first 30 mins deal with DP)
Leveson Inquiry into hacking: http://www.levesoninquiry.org.uk/
Update and courses
Next Update is October 17th 2011 in London. The guest speaker is Kuan Ho: "Every Cloud has a Data Protection Lining"; Rosemary Jay, from Hunton and Williams will be analysing the data protection fallout of the hacking affair. Sue Cullen and myself will be delivering updates on the usual "what's new" matters (e.g. enforcement, undertakings, FOI/DP interface and news roundup). £195+VAT per place: full details on the Amberhawk website (www.amberhawk.com).
Finally, this autumn, we have data protection courses in Leeds, London and Edinburgh. full details on theAmberhawk website
Comments