I’ve written a piece for the Mishcon de Reya website on the some of the key proposals (for our client-base) in today’s data protection reform announcement.
Data protection law reform – major changes, but the (mishcon.com)
Category Archives: Information Commissioner
ICO to keep income from UK GDPR fines
This is a significant development – the Information Commissioner will now be able to keep up to £7.5m a year from penalties, to cover their litigation and debt recovery costs:
https://www.mishcon.com/news/ico-to-keep-money-from-uk-gdpr-fines
Filed under Data Protection, DCMS, GDPR, Information Commissioner, monetary penalty notice, UK GDPR
GDPR reprimands for Cabinet Office, UKIP, CPS & ors
A piece by me just uploaded to the Mishcon de Reya website, on an FOI disclosure to me of the most recent reprimands under GDPR/ UK GDPR issued by the Information Commissioner
ICO reprimands Cabinet Office, UKIP, CPS and others for (mishcon.com)
Commons Committee report on Cabinet Office FOI “Clearing House”
I’ve written on the Mishcon website about the PACAC report on the Clearing House.
Lots of FOI contempt applications in the wings
A new piece on the Mishcon de Reya site: the First-tier Tribunal is dealing with at least eight applications to certify contempt of court for failure by public authorities to comply with decision notices.
First ever FOI contempt certification
I’ve written a piece on the Mishcon de Reya website on the first ever case of certification of contempt of court to the High Court, for failure to comply with a decision notice.
Open Letter to new ICO
I was delighted recently to be invited by OpenDemocracy to sign an open letter to John Edwards, new Information Commissioner, calling for more to be done to regulate FOI effectively. I’ve written many posts in the past breaking the state of FOI enforcement, so everything in the letter resonated with me. The letter has now been sent, and there are some very high profile journalists, MPs and campaigners who have signed:
Edwards has already replied, and said that addressing these concerns will be a priority for him.
Ineffectual powers
The Information Commissioner’s Office (ICO) has just announced that it has served a fine (strictly, a monetary penalty notice) of £80,000, under the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR), on a company which sent a large number of particularly tasteless SMSs during the pandemic, of this sort
“Get Debt FREE during the Lockdown! Write off 95% of ALL DEBTS with ALL charges and fees FROZEN. Government backed. Click [here] Stop 2optout”
(In passing, I’m rather surprised the ICO’s announcement gave hyperlinks to the offending, albeit broken, URLs.)
In that accompanying announcement, the ICO’s Head of Investigations is quoted as saying
The company director failed to cooperate with our investigations through concealing his identity by using false company details on his websites; changing the wording on the text messages; and, changing his company’s registered address after becoming aware of our investigation.
and we are told that the director
tried to evade the ICO investigations with different tactics since 2019, but investigators were determined to bring this company to account for plaguing people’s lives with thousands of spam messages
What is interesting in this context is that the ICO’s powers to issue fines for serious contraventions were added to, in 2018, to allow them also to fine company directors themselves (where the contravention was with the consent of connivance of the director, or attributable to any neglect on their part).
I asked the ICO if they had a comment on why no director fine was issued here, but they only wished to say
The action we have taken is proportionate and appropriate in the circumstances of this case.
This is fair enough: there may be facts which are not public, and I don’t criticise what is a sound piece of enforcement against unlawful marketing communications.
However, as far as I am aware, since the ICO acquired the powers to fine directors (and similar officers) under PECR they have not exercised those powers once. This is odd – they had long lobbied for the powers, and when the change in the law was being proposed, the then Commissioner Elizabeth Denham told The Register “It should have a real deterrent effect”. Maybe there are legal issues with actually ascribing liability to directors, or practical issues with tracking and pinning them down to try to enforce against them. If so, and if the 2018 change in the law has not had that “real deterrent effect”, is the ICO letting government know?
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.
Filed under Information Commissioner, monetary penalty notice, PECR, spam texts
The Seepage of Information Act
Transport yourself back to January 2020 (what a different world that was). You are a journalist, or maybe just an informed citizen, and you want to know what preparations the government had made in the event Boris Johnson had lost his seat in the general election a month previously.
You make a request for this information to the Cabinet Office under the Freedom of Information Act 2000 (FOIA). You know that you should get a response within twenty working days (section 10 of FOIA says so). And you know that there is a regulator (the Information Commissioner, or “ICO”) who oversees compliance with FOIA.
What you probably don’t expect is that, 25 months on, you not only haven’t received the information you requested but you have only just had a ruling from the ICO that you are not entitled to it.
That’s how long it has taken this request to make its way through what is an unacceptably slow process. The requester made the request to the Cabinet Office on 7 January 2020. By 12 March 2020 they had had no response whatsoever, so complained to ICO. Three months later, on 16 June 2020, ICO formally told the Cabinet Office to pull its finger out. On 3 August it did, and refused to disclose the requested information, citing one of the statutory exemptions. On 22 September 2020 the requester again complained to ICO, who then took sixteen months to decide that the Cabinet Office was entitled to rely on the exemption claimed.
What follows is far from a fully thought-out legal argument, but bear with me for the purposes of polemic: Article 10 of European Convention on Human Rights says that everyone has the qualified right to receive information (as well as to impart information) without interference by public authority. Previous attempts to argue that Article 10 confers something above and beyond FOIA in respect of accessing information from public authorities have foundered, on the grounds that, in context, Article 10 doesn’t add anything to the rights in FOIA (see Kennedy, para 92 and elsewhere). But it does seem to me that if the regulatory scheme itself interposes a delay which might be, as here, 1600% longer than the original statutory timescale given to the original recipient for responding to the request, the basis might arise for mounting an argument that the scheme fails to avoid public authority interference in the Article 10 fundamental right.
Maybe I’m overreaching. Let’s just say this: it cannot be right that it takes over two years to get a response and a regulatory decision on a FOIA request. Let’s hope new Commissioner John Edwards sorts this out.
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.
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