Quick blog as I am teaching most of the week; but the headline says it all.
A colleague of mine went to a lecture on the proposed Data Protection Regulation two days ago (organised by Field Fisher Waterhouse - the city law firm that employs data protection stalwart Stewart Room and which hosts meetings of the National Association of Data Protection Officers – a information law grouping which has expanded its interest to cover FOI and RIPA issues as well).
One of the speakers was John Bowman, Head of International Data Protection and Policy at the MoJ. His opening question to the floor was 'How many of you here represent consumer groups?'; not surprisingly a couple of attendees raised their hands.
'Exactly' he said warming to his theme, and the MoJ went on to explain how he wanted to hear from business as to how the proposed Regulation would affect them and, in particular, the costs they would have to incur to meet the requirements. He said that the Government’s view was that the Regulation was all about protecting the citizen and that the Regulation was biased; he added that there needed to be more of a balance towards the interests of companies (i.e. data controllers).
Mr Bowman went on to say that the UK is in an economic downturn and we need to make sure business interests are protected at such a time. He said the Regulation “'gold plated citizen's rights”, was “disproportionate” and that we needed to “plough on with the British economy”.
He added that as the US and the UK were leading the world on a digital agenda and there was a strong economic argument that these interests should be protected (by minimising the impact of the Regulation the Internet). He finished by asking all businesses to respond to the MoJ’s “call for evidence” (closing in early March).
The MoJ link to the "call for evidence" (see references) echoes this data controller emphasis. It states that “In particular, we would like information on the potential impact on organisations processing personal data, as well as the likely benefits to individuals through strengthened rights. Wherever possible, we would like this information to include practical, day-to-day examples of the proposals’ possible effects and monetised cost and benefit figures. We would also like views on the extent to which these proposals build trust in the online environment, whether they can contribute to economic growth”.
This approach is not surprising. All UK Governments (from John Major’s Government in 1990) have always had a minimal approach to data protection from the data subject’s perspective. That is why the European Commission claims that the Data Protection Act 1998 does not properly implement Directive 95/46/EC. (Readers are probably aware that eighteen of the thirty-four Articles in the Directive have not been properly implemented; see references).
My own view is that the MoJ "call for evidence" is fatuous. Has the MoJ issued a document that explains the Regulation in detail (answer “No”). So how can businesses make informed comments as to costings if they don't know how in detail the Regulation will apply? Is the MoJ expecting businesses to make their own interpretation of the Regulation by some strange osmotic process? In short, I think all the MoJ will collect is a spate of inaccurate costings and comments based on incorrect or incomplete interpretation of the Regulation.
And what will data subjects do? Well it’s obvious – if they have any sense at all they will write to the MoJ in their hundreds in support the extended protection afforded by a Regulation (hopefully adding that they support the Regulation because the UK Government cannot be trusted following its failure to implement the Directive 95/46/EC properly; see references).
In short, the MoJ has set up a numbers game where the MoJ want to say that the vast majority of respondents are opposed to costly changes to the Data Protection Act. An embarrassing number of data subjects writing in support of the changes proposed in the Regulation would make that claim “sort of difficult”.
References
The MoJ call for evidence closes March 6th (a short time span) and can be accessed at http://www.justice.gov.uk/consultations/data-protection-proposals-cfe.htm
List of deficiencies in UK’s Data Protection Act identified by the European Commission: http://amberhawk.typepad.com/amberhawk/2011/05/privacy-new-government-revelations-amplify-concerns-surrounding-deficiencies-in-uks-data-protection-.html
Advert
Our Update session on March 26th (London, £195+VAT; details on www.amberhawk.com has half a day devoted to the Regulation. As well as a guest speaker from the ICO on the Regulation, we have sessions on:
• What are changes in the definitions?
• What are changes in the Principles?
• What are changes in the Rights?
• What are changes in the Enforcement and other odds and ends?
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