I have this piece on the Mishcon de Reya website. More than a year since they were first proposed, ICO has still not converted its notices of intent into actual fines. Will it ever?
Category Archives: Data Protection Act 2018
I have a piece on the Mishcon de Reya website, questioning whether the Coronavirus might fundamentally affect the likelihood of BA and Marriott receiving huge GDPR fines.
On the Mishcon website: ICO agrees delay over GDPR fines with both BA and Marriott
The Information Commissioner has successfully prosecuted a former Social Services Support Officer at Dorset County Council for an offence under section 170 of the Data Protection Act 2018 – I think that this is the first such prosecution under the 2018 Act. Section 170 is in broadly similar terms to section 55 of the Data Protection Act 1998, under which any number of prosecutions were brought for unlawfully obtaining (etc) personal data without the consent of the controller.
Just as the 1998 Act did, the 2018 Act reserves such prosecutions to the Commissioner (except that they may also be brought by or with the consent of the Director of Public Prosecutions – see s197 of the 2018 Act).
What we have not yet seen is a prosecution of the “new” offence at section 170(1)(c) of retaining personal data (after obtaining it) without the consent of the person who was the controller when it was obtained. This is a most interesting provision – I have wondered whether the mischief it aims to address is that which arises when someone inadvertently obtains personal data (perhaps as a result of a mistake by the controller) but then refuses to hand it back. This is not an infrequent occurrence, and powers at civil law to address the issue are potentially complex and expensive to exercise. It will be interesting to see whether prosecutions in this regard emerge in due course.
The views in this post (and indeed most posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.
Although GDPR, and the Data Protection Act 2018 (DPA18), took effect from 25 May 2018, it has been notable that the Information Commissioner’s Office (ICO) has continued to exercise its enforcement powers under the prior law. There is no problem with this, and it is only to be expected, given that regulatory investigations can take some time. The DPA18 contains transitional provisions which mean that certain sections of the Data Protection Act 1998 continue to have effect, despite its general repeal. This is the reason, for instance, why the ICO could serve its recent enforcement notice on Hudson Bay Finance Ltd using the powers in section 40 of the 1998 – paragraph 33 of Schedule 20 to the DPA18 provides that section 40 of the 1998 Act continues to apply if the ICO is satisfied that the controller contravened the old data protection principles before the rest of the 1998 Act was repealed.
However, what is noticeable in the Hudson Bay Finance Ltd enforcement notice is that it says that it was prompted by a request for assessment by the complainant, apparently made on 21 September 2018, purportedly made under section 42 of the 1998 Act. I say “purportedly” because the transitional provisions in Schedule 20 of DPA18 require the ICO to consider a request for assessment made before 25 May 2018, but in all other respects, section 42 is repealed. Accordingly, as a matter of law, a data subject can (after 25 May 2018) no longer exercise their right to request an assessment under section 42 of the 1998 Act.
This is all rather academic, because it appears to me that the ICO has discretion – even if it does not have an obligation – to consider a complaint by a data subject relating to compliance with the 1998 Act. And ICO clearly (as described above) has the power still to take enforcement action for contraventions of the 1998 Act. But no one ever told me I can’t use my blog to make arid academic points.
The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.