Category Archives: Data Protection

September 25, 2015 · 2:46 pm

When data security = national security

One of the options open to the Information Commissioner’s Office (ICO), when considering whether to take enforcement action under the Data Protection Act 1998 (DPA) is – as an alternative to such action – to invite an offending data controller to sign an “undertaking”, which will in effect informally commit it to taking, or desisting from, specified actions. An undertaking is a relatively common event (there have been fifty over the last year) – so much so that the ICO has largely stopped publicising them (other than uploading them to its website) – very rarely is there a press release or even a tweet.

There is a separate story to be explored about both ICO’s approach to enforcement in general, and to its approach to publicity, but I thought it was worth highlighting a rather remarkable undertaking uploaded to the ICO’s site yesterday. It appears that the airline Flybe reported itself to the ICO last November, after a temporary employee managed to scan another individual’s passport, and email it to his (the employee’s) personal email account. The employee in question was in possession of an “air side pass”. Such a pass allows an individual to work unescorted in restricted areas of airports and clearly implies a level of security clearance. The ICO noted, however, that

Flybe did not provide data protection training for all staff members who process personal data. This included the temporary member of staff involved in this particular incident…

This is standard stuff for DPA enforcement: lack of training for staff handling personal data will almost always land the data controller in hot water if something goes wrong. But it’s what follows that strikes me as remarkable

the employee accessed various forms of personal data as part of the process to issue air side passes to Flybe’s permanent staff. This data included copies of passports, banking details and some information needed for criminal record background checks. The Commissioner was concerned that such access had been granted without due consideration to carrying out similar background checks to those afforded to permanent employees. Given the nature of the data to which the temporary employee had access, the Commissioner would have expected the data controller to have had some basic checking controls in place.

Surely this raises concerns beyond the data protection arena? Data protection does not exist in isolation from a broader security context. If it was really the case that basic checking controls were not in place regarding Flybe’s temporary employees and data protection, might it raise concerns about how that impacts on national security?

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.

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September 25, 2015 · 12:31 pm

Anti-EU campaign database – in contravention of data protection laws?

The politics.co.uk site reports that an anti-EU umbrella campaign called Leave.EU (or is it theknow.eu?) has been written to by the Information Commissioner’s Office (ICO) after allegedly sending unsolicited emails to people who appear to have been “signed up” by friends or family. The campaign’s bank-roller, UKIP donor Aaron Banks, reportedly said

We have 70,000 people registered and people have been asked to supply 10 emails of friends or family to build out (sic) database

Emails sent to those signed up in this way are highly likely to have been sent in breach of the campaign’s obligations under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), and the ICO is reported to have to written to the campaign to

inform them of their obligations under the PECR and to ask them to suppress [the recipient’s] email address from their databases

But is this really the main concern here? Or, rather, should we (and the ICO) be asking what on earth is a political campaign doing building a huge database of people, and identifying them as (potential) supporters without their knowledge? Such concerns go to the very heart of modern privacy and data protection law.

Data protection law’s genesis lie, in part, in the desire, post-war, of European nations to ensure “a foundation of justice and peace in the world”, as the preamble to the European Convention on Human Rights states. The first recital to the European Community Data Protection Directive of 1995 makes clear that the importance of those fundamental rights to data protection law.

The Directive is, of course, given domestic effect by the Data Protection Act 1998 (DPA). Section 2 of the same states that information as to someone’s political beliefs is her personal data: I would submit that presence on a database purporting to show that someone supports the UK”s withdrawal from the European Union is also her personal data. Placing someone on that database, without her knowledge or ability to object, will be manifestly “unfair” when it comes to compliance with the first data protection principle. It may also be inaccurate, when it comes to compliance with the fourth principle.

I would urge the ICO to look much more closely at this – the compiling of (query inaccurate) of secret databases of people’s political opinions has very scary antecedents.

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.

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September 23, 2015 · 4:55 pm

ICO discloses names of Operation Motorman journalists

In August this year the Upper Tribunal dismissed an appeal by the Information Commissioner’s Office (ICO) of a prior ruling that he must disclose the names of certain journalists who appeared on a list 305 names seized by the ICO during a raid in 2003 on the home of private investigator Steve Whittamore. The raid was part of “Operation Motorman”, an investigation which forms part of the background to the various civil and criminal proceedings generated by the phone-hacking scandals, and to the establishment of the Leveson Inquiry.

The names which have been ordered to be disclosed have now been provided by the ICO to the requester, the clearly indefatigable Chris Colenso-Dunne. Chris has kindly given the list to me, and I make it available in the attachment below. One name stands out in particular: Rebekah Wade (as she then was), now Brooks, who has always denied knowledge of the phone-hacking which took place while she was editor of the now defunct News of the World (and who was, of course, acquitted in 2014 of conspiring to hack phones when editor of that paper and of making corrupt payments to public officials when editor of The Sun, as well as of all other charges).

It is important to be aware, as the Upper Tribunal said, that presence on the list means nothing more than that the journalists in question

had commissioned Mr Whittamore to obtain information… The information did not carry with it any assertion as to the actual or alleged commission of any crime by those journalists [para 38]

No doubt the list will generate further comment, though.

ICO Motorman List

[this post was edited to remove a paragraph where I’d mistakenly taken the list to mean that Wade was working for “Femail” at the time]

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.


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August 14, 2015 · 7:05 am

Zero rating for fairness

It’s a long time since I took a flight, but when I used to do so, I too would have the experience, when purchasing items in airport shops, of being asked to produce my boarding pass and having it scanned by the retailer. I now know that the reason for this is, contrary to my assumptions, nothing to do with security, and everything to do with the retailer’s VAT pricing structure. 

I don’t particularly object to the practice itself, but what does concern me, from a privacy and data protection perspective, is the lack of information traditionally given to passengers about the reason for it, and what happens with the information gathered.

The third data protection principle, in Schedule 1 of the Data Protection Act 1998 (DPA) states, in relevant part, that personal data should be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. Is the processing by retailers compliant with their obligations under this principle?When retailers scan boarding passes they will be at least potentially collecting (“processing”) passengers’ names, flight numbers and travel destination. The last is the purpose of the exercise: if the passenger is travelling outside the European Union the purchase is zero-rates for the purposes of VAT. But is it necessary therefore to collect all the boarding pass data? Well, HMRC guidance suggests that it is:

Information from the boarding cards or travel documents presented by entitled passengers should be retained by retailers as part of their export evidence.

This suggests that, in order to satisfy any HMRC inspector that zero-rated purchases have been made legitimately, proof of the details of the purchase will need to be retained and provided. 

If that is the case then there’s a good argument that retailers could satisfy the requirements of the third DPA principle. But there is a more fundamental requirement, in the first Schedule One principle, to process personal data fairly, and fairness will not be achieved unless

in the case of data obtained from the data subject, the data controller ensures so far as practicable that the data subject has, is provided with, or has made readily available to him… [inter alia]…the purpose or purposes for which the data are intended to be processed

And there we are back to the start of this post: I didn’t know what the purpose was of scanning my boarding pass, and it’s very clear from the recent media coverage of the issue that many, probably most, passengers didn’t or don’t realise. In my view this, coupled with the retention of the data for HMRC purposes, renders the processing unfair and unlawful. Whether the relevant data controller is the retailer, who does the act, or HMRC, who appear to require it, is another question (it’s probable that they are acting as joint data controllers) but I think the Information Commissioner’s Office should take a look.

(Thanks to Rich Greenhill for pointing out the HMRC guidance).

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.

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August 12, 2015 · 8:36 am

Big Brother is misleading you

The best books… are those that tell you what you know already…

Big Brother Watch (BBW) is a campaigning organisation, a spin-off from the right-wing lobby group The Taxpayers’ Alliance, described as a “poorly disguised Conservative front”, a large part of whose funds come “from wealthy donors, many of whom are prominent supporters of the Conservative party“. To an extent, that doesn’t matter to me: BBW has done a lot to highlight privacy issues which chime with some of my own concerns – eg excessive use of CCTV, biometrics in schools – but regularly they rail against local authority “databreaches” in a way I think is both unhelpful and disingenuous.

The latest example is a report issued this week (on 11th August 2015) entitled “A Breach of Trust – how local authorities commit 4 data breaches every day”. Martin Hoskins has already done an excellent job in querying and critiquing the findings

At first glance, it looks impressive. It’s almost 200 pages long. But, and this is a big but, there are only a few pages of analysis – once you get past page 12, a series of annexes contain the responses from each local authority, revealing how minor the vast majority of the reported incidents (occurring between April 2011 and April 2014) actually were.

BBW started work on this report by submitting FOI requests to each local authority in June 2014. Quite why it has taken so to publish the results, bearing in mind that FOI requests should be returned within 20 days, is beyond me. Although BBW claims to have received a 98% response rate, some 212 authorities either declined to provide information, or claimed that they had experienced no data breaches between 2011 and 2014.

But plenty of media outlets have already uncritically picked the report up and run stories such as the BBC’s “Council data security ‘shockingly lax'” and the Mail’s “Councils losing personal data four times a day”. Local news media also willingly ran stories about their local councils’ data.

However, my main criticism of this BBW report is a fundamental one: their methodology was so flawed that the results are effectively worthless. Helpfully, although at the end of the report, they outline that methodology:

A Freedom of Information request was sent to all local authorities beginning on the 9th June 2014.

We asked for the number of individuals that have been convicted for breaking the Data Protection Act, the number that had had their employment terminated as the result of a DPA breach, the number that were disciplined internally, the number that resigned during proceedings and the number of instances where no action was taken.

The FOI request itself asked for

a list of the offences committed by the individual in question

The flaw is this: individuals within an organisation can not, in general terms “break” or “breach” the Data Protection Act 1998 (DPA). An employee is a mere agent of his or her employer, and under the DPA the legal person with the general obligations and liabilities is the “data controller”: an employee of an organisation does not have any real status under the DPA – the employer will be the “person who determines the purposes for which and the manner in which personal data are processed”, that is, the data controller. An individual employee could, in specific terms, “break” or “breach” the DPA but only if they committed an offence under section 55, of unlawfully obtaining etc. personal data without the consent of the data controller. There is a huge amount of confusion, and sloppy thinking, when it comes to what is meant by a data protection “breach”, but the vast majority of the incidents BBW report on are simply incidents in which personal data has been compromised by the council in question as data controller. No determination of whether the DPA was actually contravened will have been made (if only because the function of determining whether the Act has been contravened is one which falls to the Information Commissioner’s Office, or the police, or the courts). And if BBW wanted a list of offences committed, that list would be tiny.

To an extent, therefore, those councils who responded with inaccurate information are to blame. FOI practitioners are taught (when they are well taught) to read a request carefully, and where there is uncertainty or ambiguity, to seek clarification from the requester. In this instance, I did in fact advise one local authority to do so. Regrettably, rather than clarifying their request, BBW chose not to respond, and the council is listed in the report as “no response received”, which is both unfair and untrue.

I am not saying that data security and data protection in councils is not an area of concern. Indeed, I am sure that in some places it is lax. But councils deal with an enormous amount of sensitive personal data, and mistakes and near misses will sometimes happen. Councils are encouraged to (and should be applauded for) keeping registers of such incidents. But they shouldn’t disclose those registers in response to ill-informed and badly worded FOI requests, because the evidence here is that they, and the facts, will be misleadingly represented in order to fit a pre-planned agenda.

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.

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August 11, 2015 · 6:51 am

Carphone Warehouse and the DPA risks

According to my less-than-reliable memory, I once purchased a mobile phone from Carphone Warehouse about twelve years ago. I seem to also remember buying a phone from a company with a name like mobiles.co.uk around the same time (we’re they even going then?). Since then, my telephone number, postal address and email address have all changed, but my main banking details have not. So when the news emerged in recent days that Carphone Warehouse and various subsidiaries and partners had been affected by a data security breach involving the data of 2.4m customers I was understandably concerned. I have asked Carphone Warehouse several times how far back they held data which has been compromised, and explained that my contact details will have changed from any they might hold, but I have just been referred to generic information on their website which says that affected customers will be sent an email or text message (which is clearly useless to me).

I think Carphone Warehouse need urgently to clarify how far back they were retaining customer data that was compromised in this incident: I will be extremely unhappy if my c.12 year old data was in fact involved, because as far as I can see there would have been no reason to retain it that long. The fifth principle in Schedule One of the Data Protection Act 1998 (DPA) states that personal data should not be kept for longer than is necessary to fulfil the original purpose for which it was gathered – I doubt that retaining for twelve-odd years would comply with Carphone Warehouse’s obligations under the DPA.

But on a more general, less personal, note, what might this incident mean in DPA terms for Carphone Warehouse and its customers? I note that the generic information referred to above states that the cause was “a sophisticated cyber-attack” and that such attacks are “part of the reality of the modern world”. This is true, but not all organisations suffer such a serious breach of their systems that more than two million people are affected. Carphone Warehouse, as a data controller with obligations to process customer data in accordance with their obligations under the DPA will have to satisfy the Information Commissioner’s Office (which is investigating) and its customers that it complied with the seventh data protection principle, and had appropriate technical and organisational measures in place to safeguard personal data. Failure to have done so would open Carphone Warehouse up to the risk of an ICO monetary penalty to a maximum of£500,000. But the reason I mentioned satisfying customers as to the appropriate measures in place is that the DPA affords individual data subjects the right to bring a compensation claim against a data controller for a contravention of the Act. Traditionally, this right only applied where the data subject had suffered quantifiable damage (in the form of monetary loss), but, since the decision of the Court of Appeal earlier this year in Google Inc v Vidal-Hall & ors. [2015] EWCA Civ 311, such claims can be made on the basis purely of the distress suffered as a result of the contravention. I’ve got to say, I’m feeling a certain level of distress just now at the thought that my data might have been compromised. If it transpires that it was, the distress will only increase. Although such distress payments are unlikely ever to be particularly large, when one then considers the emergence of group litigation of DPA claims, the financial risks to data controllers who suffer huge breaches of customer data is palpable: purely hypothetically, if Carphone Warehouse were found to have failed to comply with their DPA obligations, and half of the customers affected brought a money claim worth £100, they would be facing an exposure of more than £100 million. One wonders if the market’s continuing current confidence in the company allows for that.

Google has been granted permission to appeal Vidal-Hall to the Supreme Court, but pending that the Court of Appeal’s judgment remains good law. And, as I have predicted previously, I think there may be a number of law firms eyeing the case, and potential clients, expectantly.

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.

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August 8, 2015 · 10:22 am

FOI, data protection and rogue landlords 

On 23rd July the Chartered Institute of Environmental Health (CIEH), in conjunction with the Guardian, published a database of landlords who have been convicted of offences under the Housing Act 2004. This showed, for example, that one landlord has been prosecuted seven times for issues relating to disrepair and poor state of properties rented out. It also showed apparent regional discrepancies regarding prosecutions, with some councils carrying out only one prosecution since 2006.

This public interest investigative journalism was, however not achieved without a fight: in September last year the information Commissioners office (ICO) issued a decision notice finding that the journalists request for this information had been correctly refused by the Ministry of Justice on the grounds that the information was sensitive personal data and disclosure under the Freedom of Information Act 2000 (FOIA) would contravene the MoJ’s obligations under the Data Protection Act 1998 (DPA). Section 40(2) of FOIA provides that information is exempt from disclosure under FOIA if disclosure would contravene any of the data protection principles in Schedule One of the DPA (it also provides that it would be exempt if disclosure would contravene section 10 of the DPA, but this is rarely invoked). The key data protection principle is the first, which says that personal data must be processed fairly and lawfully, and in particular that the processing must meet one of the conditions in Schedule Two, and also – for sensitive personal data – one of the conditions in Schedule Three.

The ICO, in its decision notice, after correctly determining that information about identifiable individuals (as opposed to companies) within the scope of the request was sensitive personal data (because it was about offences committed by those individuals) did not accept the requester’s submission that a Schedule Three condition existed which permitted disclosure. The only ones which could potentially apply – condition 1 (explicit consent) or condition 5 (information already made public by the individual) – were not engaged.

However, the ICO did not at the time consider the secondary legislation made under condition 10: the Data Protection (Processing of Sensitive Personal Data) Order 2000 provides further bases for processing of sensitive personal data, and, as the the First-tier Tribunal (Information Rights) (FTT) accepted upon appeal by the applicant, part 3 of the Schedule to that Order permits processing where the processing is “in the substantial public interest”, is in connection with “the commission by any person of any unlawful act” and is for journalistic purposes and is done with a “view to the publication of those data by any person and the data controller reasonably believes that such publication would be in the public interest”. In fairness to the ICO, this further condition was identified by them in their response to the appeal.

In this case, the information was clearly sought with a view to the future publication in the CIEH’s Magazine, “Environmental Health News” and the requester was the digital editor of the latter. This, the FTT decided, taken with the (objective) substantial public interest in the publication of the information, was sufficient to make disclosure under FOIA fair and lawful. In a passage (paras 28-30) worth quoting in full the FTT said

Unfit housing is a matter of major public concern and has a significant impact on the health of tenants.  The Housing Act is a key mechanism for local authorities to improve housing standards and protect the health of vulnerable tenants.  One mechanism for doing this is by means of prosecution, another is licensing schemes for landlords.  Local authorities place vulnerable families in accommodation outside their areas tenants seek accommodation, The publication of information about convictions under the Housing Act would be of considerable value to local authorities in discharge of their functions and assist prospective tenants and those assisting them in avoiding landlords with a history of breaches of the Housing Act.

The sanctions under the Housing Act are comparatively small and the  opprobrium of a conviction may well not rank with other forms of criminal misbehaviour, however the potential for harm to others from such activity is very great, the potential for financial benefit from the misbehaviour is also substantial.  Breaches of the Housing Act are economically motivated and what is proposed is a method of advancing the policy objective of the Housing Act by increasing the availability of relevant information to key actors in the rented housing market – the local authorities as regulator and purchaser and the tenants themselves.  Any impact on the data subjects will overwhelmingly be on their commercial reputations rather than more personal matters.

The Tribunal is therefore satisfied that not only is the disclosure of this information in the substantial public interest, but also any reasonably informed data controller with  knowledge of the social needs and the impact of such disclosure would so conclude.

It is relatively rare that sensitive personal data will be disclosed, or ordered to be disclosed, under FOIA, but it is well worth remembering the 2000 Order, particularly when it comes to publication or proposed publication of such data under public interest journalism.

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..

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August 3, 2015 · 9:23 am

Dear Google…Dear ICO…

On 15 June this year I complained to Google UK. I have had no response, so I have now asked the Information Commissioner’s Office to assess the lawfulness of Google’s actions. This is my email to the ICO

Hi

I would like to complain about Google UK. On 15 June 2015 I wrote to them at their registered address in the following terms

“Complaint under Data Protection Act 1998

When a search is made on Google for my name “Jonathan Baines”, and, alternatively, “Jon Baines”, a series of results are returned, but at the foot of the page a message (“the message”) is displayed:

Some results may have been removed under data protection law in Europe. Learn more

To the best of my knowledge, no results have in fact been removed.

The first principle in Schedule One of the Data Protection Act 1998 (DPA) requires a data controller to process personal data fairly and lawfully. In the circumstances I describe, “Jonathan Baines”, “Jon Baines” and the message constitute my personal data, of which you are clearly data controller.

It is unfair to suggest that some results may have been removed under data protection law. This is because the message carries an innuendo that what may have been removed was content that was embarrassing, or that I did not wish to be returned by a Google search. This is not the case. I do not consider that the hyperlink “Learn more” nullifies the innuendo: for instance, a search on Twitter for the phrase “some results may have been removed” provides multiple examples of people assuming the message carries an innuendo meaning.

Accordingly, please remove the message from any page containing the results of a search on my name Jonathan Baines, or Jon Baines, and please confirm to me that you have done so. You are welcome to email me to this effect at [redacted]”

I have had no response to this letter, and furthermore I have twice contacted Google UK’s twitter account “@googleuk” to ask about a response, but have had none.

I am now asking, pursuant to my right to do so at section 42 of the Data Protection Act 1998, for you to conduct an assessment as to whether it is likely or unlikely that the processing by Google UK has been or is being carried out in compliance with the provisions of that Act.

I note that in Case C‑131/12 the Grand Chamber of the Court of Justice of the European Union held that “when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State” then “the processing is carried out in the context of the activities of an establishment of the controller on the territory of the Member State”. I also note that Google UK’s notification to your offices under section 18 of the Data Protection Act 1998 says “We process personal information to enable us to promote our goods and services”. On this basis alone I would submit that Google UK is carrying out processing as a data controller in the UK jurisdiction.

I hope I have provided sufficient information for you to being to assess Google UK’s compliance with its obligations under the Data Protection Act 1998, but please contact me if you require any further information.

with best wishes,

Jon Baines

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June 28, 2015 · 12:00 pm

What does it take to stop Lib Dems spamming?

Lib Dems continue to breach ePrivacy law, ICO still won’t take enforcement action.

It’s not difficult: the sending of unsolicited marketing emails to me is unlawful. Regulation 22 of The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) and by extension, the first and second principles in Schedule One of the Data Protection Act 1998 (DPA) make it so. The Liberal Democrats have engaged in this unlawful practice – they know and the Information Commissioner’s Office (ICO) know it, because the latter recently told the former that they have, and told me in turn

I have reviewed your correspondence and the [Lib Dem’s] website, and it appears that their current practices would fail to comply with the requirements of the PECR. This is because consent is not knowingly given, clear and specific….As such, we have written to the organisation to remind them of their obligations under the PECR and ensure that valid consent is obtained from individuals

But the ICO has chosen not to take enforcement action, saying to me in an email of 24th April

enforcement action is not taken routinely and it is our decision whether to take it. We cannot take enforcement action in every case that is reported to us

Of course I’d never suggested they take action in every case – I’d requested (as is my right under regulation 32 of PECR) that they take action in this particular case. The ICO also asked for the email addresses I’d used; I gave these over assuming it was for the purposes of pursuing an investigation but no, when I later asked the ICO they said they’d passed them to the Lib Dems in order that they could be suppressed from the Lib Dem mailing list. I could have done that if I wanted to. It wasn’t the point and I actually think the ICO were out of order (and contravening the DPA themselves) in failing to tell me that was the purpose.

But I digress. Failure to comply with PECR and the DPA is rife across the political spectrum and I think it’s strongly arguable that lack of enforcement action by the ICO facilitates this. And to illustrate this, I visited the Lib Dems’ website recently, and saw the following message

Untitled

Vacuous and vague, I suppose, but I don’t disagree, so I entered an email address registered to me (another one I reserve for situations where I fear future spamming) and clicked “I agree”. By return I got an email saying

Friend – Thank you for joining the Liberal Democrats…

Wait – hold on a cotton-picking minute – I haven’t joined the bloody Liberal Democrats – I put an email in a box! Is this how they got their recent, and rather-hard-to-explain-in-the-circumstances “surge” in membership? Am I (admittedly using a pseudonym) now registered with them as a member? If so, that raises serious concerns about DPA compliance – wrongly attributing membership of a political party to someone is processing of sensitive personal data without a legal basis.

It’s possible that I haven’t yet been registered as such, because the email went on to say

Click here to activate your account

When I saw this I actually thought the Lib Dems might have listened to the ICO – I assumed that if I didn’t (I didn’t) “click here” I would hear no more. Not entirely PECR compliant, but a step in the right direction. But no, I’ve since received an email from the lonely Alistair Carmichael asking me to support the Human Rights Act (which I do) but to support it by joining a Lib Dem campaign. This is direct marketing of a political party, I didn’t consent to it, and it’s sending was unlawful.

I’ll report it to the ICO, more in hope than expectation that they will do anything. But if they don’t, I think they have to accept that a continuing failure to take enforcement against casual abuse of privacy laws is going to lead to a proliferation of that abuse.

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..

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May 23, 2015 · 9:21 am

No Information Rights Levy for ICO – where now for funding?

The ICO’s plan for an “information rights levy” appears to have been scuppered by the government. But is retaining data protection notification fees the way to solve the funding problem?

Back in the heady days of January 2012, when a naive but optimistic European Commission proposed a General Data Protection Regulation (GDPR), to replace the existing 1995 Directive, one of the less-commented-on proposals was to remove the requirement for data controllers to notify their processing activities to the national data protection authority. However, the UK Information Commissioner’s Office (ICO) certainly noticed it, because the implications were that, at a stroke, a large amount of ICO funding would disappear. Currently, section 18(5) of the Data Protection Act 1998 (DPA), and accompanying secondary legislation, mean that data controllers (unless they have an exemption) must pay an annual fee to the ICO of either £35 or £500 (depending upon the size of the organisation). In 2012-2013 this equated to an estimated income of £17.4m, and this income effectively funds all of the ICO’s data protection regulatory actions (its FOI functions are funded by grant-in-aid from the Ministry of Justice).

Three years later, and the GDPR is still not with us. However, it will eventually be passed, and when it is, it seems certain that the requirement under European law to notify will be gone. Because of this, as the Justice Committee recognised in 2013, alternative ICO funding means need to be identified as soon as possible. The ICO’s preferred choice, and one which Christopher Graham has certainly been pushing for, was an “Information Rights Levy”, the details of which were not specified, but which it appears was proposed to be paid by data controllers and public authorities (subject to FOI) alike. In the 2013/14 ICO Annual Report Graham was bullish in calling for action:

Parliament needs to get on with the task of establishing a single, graduated information rights levy to fund the important work of the ICO as the effective upholder of our vital right to privacy and right to know

But this robust approach doesn’t seem to have worked. At a recent meeting of the ICO Management Board a much more pessimistic view emerges. In a report entitled “Registration Fee Strategy” it is said that

The ICO has previously highlighted the need for an ‘information rights fee’ or one fee, paid by organisations directly to the ICO, to fund all information rights activities. Given concerns across government that this would result in private sector cross subsidising public sector work, the ICO recognises that this is unlikely in the short term

The report goes on, therefore, to talk about proposed changes to the current fee/notification process, and about ways of identifying who needs to pay. 

But, oddly, it seems to assume that although the GDPR will remove the requirement for a data controller  to notify processing to the ICO, the UK will retain the discretion to continue with such arrangements (and to charge a fee). I’m not sure this is right. As I’ve written previously, under data protection law at least some recreational bloggers have a requirement to notify (and pay a fee), and the legal authorities are clear that the law’s ambit extends to, for instance, individuals operating domestic CCTV, if that CCTV covers public places where identifiable individuals are. Indeed, as the 2004 Lindqvist case found 

The act of referring, on an internet page, to various persons and identifying them by name or by other means, for instance by giving their telephone number…constitutes ‘the processing of personal data…[and] is not covered by any of the exceptionsin Article 3(2) of Directive 95/46 [section 36 of the DPA transposes Article 3(2) into domestic law]

It is arguable that, to varying extents, we are all data controllers now (and ones who will struggle to avail ourselves of the data protection exemption for domestic purposes). Levying a fee on all of us, in order that we can lawfully express ourselves, has the potential to be a serious infringement of our right to freedom of expression under Article 10 of the European Convention on Human Rights, and even more directly, Article 11 of the Charter of Fundamental Rights of the European Union.

The problem of how to effectively fund the ICO in a time of austerity is a challenging one, and I don’t envy those at the ICO and in government who are trying to solve it, but levying a tax on freedom of expression (which notification arguably already is, and would almost certainly be if the GDPR doesn’t actually require notification) is not the way to do so.

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..

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