Category Archives: monetary penalty notice

July 29, 2025 · 5:44 pm

ICO fines: are you certain?

In his inaugural speech as Information Commissioner, in 2022, John Edwards said

my focus is on bringing certainty in what the law requires of you and your organisations, and in how the regulator acts

It’s a message he’s sought to convey on many occasions since. No surprise: it’s one of the Commissioner’s tasks under the Regulators’ Code to

improve confidence in compliance for those they regulate, by providing greater certainty

This isn’t the place or the time for a broad analysis of how well the ICO has measured up to those standards, but I want to look at one particular example of where there appears to be some uncertainty.

In March 2024, the ICO fined the Central YMCA £7500 for serious contraventions of the UK GDPR. In announcing the fine, the ICO said that it would have been £300,000 but that “this was subsequently reduced in line with the ICO’s public sector approach” (the policy decision whereby “fines for public sector bodies are reduced where appropriate”). When questioned why a charity benefited from the public sector approach, the ICO stated that

Central YMCA is a charity that does a lot of good work, they engaged with us in good faith after the incident happened, recognised their mistake immediately and have made amends to their processing activities…the fine is in line with the spirit of our public sector approach

So the charity sector might have reasonably drawn from this that, in the event that another charity doing a “lot of good work” seriously contravened the UK GDPR, but engaged in good faith with the ICO and made amends to its processing activities, it would also benefit from the public sector approach, with a similar reduction of around 97.5% in any fine.

However, on 28 July, the Scottish charity Birthlink was fined £18,000 by the ICO for serious contraventions of the UK GDPR but the ICO did not apply the public sector approach. When I questioned why, the answer merely confirmed that it had not been applied, but that they had applied their Fining Guidance. Admittedly, Birthlink did not recognise the seriousness of its contraventions for around two years, but that was not mentioned in the ICO’s answer.

I was also referred to the consultation on continuing the public sector approach, which ran earlier this year. That consultation explained that the proposal was not to apply the public sector approach to charities in the future, because the ICO would have regard to the definition of “public authority” and “public body” at section 7 of the Data Protection Act 2018, which, for obvious reasons, doesn’t include charities.

However, the outcome of that consultation has not been announced yet, and the ICO site says

In the meantime, we will continue to apply the approach outlined by the Commissioner in his June 2022 open letter.

As that current approach is the one under which the ICO applied great leniency to the Central YMCA, the question therefore remains – why did Birthlink not also benefit from it?

And there’s a wider question: the definition of a public body/authority at section 7 of the Data Protection Act 2018 has been in effect since 2018. Why did the ICO think, in 2024, that section 7 was not relevant, and that a (wealthy) charity should qualify for the public sector approach, but then decide that another (much less wealthy) charity shouldn’t, when facing a fine only a few months later?

The answers are far from certain.

The views in this post (and indeed most posts on blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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April 30, 2024 · 5:58 am

ICO applies public sector fine approach to charity

The Information Commissioner’s Office has fined the CENTRAL YOUNG MEN’S CHRISTIAN ASSOCIATION (YMCA) of London £7500.

The penalty notice is not published at the time of writing (nor anything else yet on the ICO website), although the fine is said to have already been paid, and the press release issued by the ICO says the fine was issued for “a data breach where emails intended for those on a HIV support programme were sent to 264 email addresses using CC instead of BCC, revealing the email addresses to all recipients. This resulted in 166 people being identifiable or potentially identifiable”.

The press release also says that the fine was reduced from an initially-recommended £300,000, “in line with the ICO’s public sector approach”. When I queried the rather obvious point that a charity is not a public authority, an ICO spokesman initially told me that “as Central YMCA is a charity that does a lot of good work, they engaged with us in good faith after the incident happened, recognised their mistake immediately and have made amends to their processing activities and they paid the fine in full straight away, we applied the spirit of the public sector approach to them even though they’re not strictly a public sector body”.

This led to a further follow-up query from me because as a matter of logic and timing, how could the fact that a controller “paid the fine in full straight away” be a mitigating factor in reducing the amount of the fine to be paid? The further response was “The point was that they engaged fully and subsequently paid the fine in full, thus confirming our position that they were engaging and taking the breach seriously. The calculation comes before the payment which has no bearing on the assessed amount.”

I’m not quite sure what to make of this. Can any controller which “does a lot of good work”, engages with the ICO in good faith and remedies processing activities also benefit from a 3900% decrease in fine from an originally-recommended sum? What does “a lot of good work” mean? Is it something only charities do? What about private companies with a strong ESG ethos, or who make significant charitable contributions?

[this post was originally published on my LinkedIn page.]

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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September 27, 2023 · 7:23 am

Soft regulation = poorer compliance?

The Information Commissioner’s Office (ICO) has published reprimands against seven separate organisations all of whom committed serious infringements of data protection law by inadvertently disclosing highly sensitive information in the context of cases involving victims of domestic abuse.

The ICO trumpets the announcement, but does not appear to consider the point that, until recently, most, if not all, of these infringements would have resulted in a hefty fine, not a regulatory soft tap on the wrist. Nor does it contemplate the argument that precisely this sort of light-touch regulation might lead to more of these sorts of incidents, if organisations believe they can act (or fail to act) with impunity.

I have written elsewhere about both the lack of any policy or procedure regarding the use of reprimands, and also about the lack of empirical evidence that a “no fines” approach works.

I think it is incumbent on the Information Commissioner, John Edwards, to answer this question: are you confident that your approach is not leading to poorer compliance?

The cases include

  • Four cases of organisations revealing the safe addresses of the victims to their alleged abuser. In one case a family had to be immediately moved to emergency accommodation. 
  • Revealing identities of women seeking information about their partners to those partners. 
  • Disclosing the home address of two adopted children to their birth father, who was in prison on three counts of raping their mother. 
  • Sending an unredacted assessment report about children at risk of harm to their mother’s ex-partners. 

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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July 28, 2023 · 9:32 am

Has ICO “no fines” policy been introduced without proper debate?

At the NADPO annual conference last year Information Commissioner John Edwards discussed his policy of reserving fines under UK GDPR to public bodies only for the most egregious cases. The policy had been announced a few months earlier in an open letter (interestingly addressed to “public sector colleagues”).

Since then, it seems that fines (other than for Privacy and Electronic Communications Regulations (PECR) matters) are – in general – almost off the Information Commissioner’s agenda. Just this week a reprimand – only – was issued to a video sharing platform (the contents of which tend towards the conspiratorial, and the users of which might have particular concerns about exposure) which suffered an exfiltration attack involving 345000 user names, email addresses and passwords.

Earlier this year I made a Freedom of Information request for the evidential basis for Edwards’ policy. The response placed primary focus on a paper entitled “An Introduction to Outcome Based Cooperative Regulation (OBCR)” by Christopher Hodges, from the Centre for Socio-Legal Studies at Oxford. Hodges is also Chair of the government’s Regulatory Horizons Council.

The paper does not present empirical evidence of the effects of fines (or the effects of not-fining) but proposes a staged model (OBCR) of cooperation between businesses (not, one notes, public bodies) and regulators to achieve common purposes and outcomes. OBCR, it says, enables organisations to “opt for basing their activities around demonstrating they can be trusted”. The stages proposed involve agreement amongst all stakeholders of purposes, objectives and desired outcomes, as well as evidence and metrics to identify those outcomes.

But what was notable about Edwards’ policy, was that it arrived without fanfare, and – apparently – without consultation or indeed any involvement of stakeholders. If the aim of OBCR is cooperation, one might reasonably question whether such a failure to consult vitiates, or at least hobbles, the policy from the start.

And, to the extent that the judiciary is one of those stakeholders, it would appear from the judgment of Upper Tribunal Judge Mitchell, in the first GDPR/UK GDPR fining case (concerning the very first GDPR fine in the UK) to reach the appellate courts, that there is not a consensus on the lack of utility of fines. At paragraph 178, when discussing the fact that fines (which are, by section 155 Data Protection Act 2018, “penalty” notices) the judge says

There is clearly also a dissuasive aspect to [monetary penalty notices]. I do not think it can be sensibly disputed that, in general, the prospect of significant financial penalties for breach of data protection requirements makes a controller or processor more likely to eschew a lackadaisical approach to data protection compliance and less likely to take deliberate action in breach of data protection requirements.

This is a statement which should carry some weight, and, to the extent that it is an expression on regulatory theory (which I think it is) it illustrates why a policy such as John Edwards has adopted requires (indeed, required) more of a public debate that it appears to have had.

As the issuing of fines inevitably involves an exercise of discretion, it is essentially impossible to say how many fines have not been issued which would have been, but for the Edwards policy (although it might be possible to look at whether there has – which I suspect there has – been a corresponding increase in “reprimands”, and draw conclusions from that). Nonetheless, some recipients of fines from before the policy was introduced might well reasonably ask themselves whether, had Edwards’ policy been in place at the time, they would have escaped the penalty, and why, through an accident of timing, they were financially punished when others are not. Similarly, those companies which may still receive fines, including under the PECR regime, yet which can convincingly argue that they wish to, and can, demonstrate they can be trusted, might also reasonably asked why they are not being given the opportunity to do so.

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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November 2, 2022 · 5:11 pm

ICO threatened Matt Hancock with £17.5m fine (sort of)

It’s well known that, under the UK GDPR, and the Data Protection Act 2018 (DPA), the Information Commissioner can fine a controller or a processor a maximum of £17.5m (or 4% of global annual turnover). Less well known (to me at least) is that he can fine any person, including you, or me, or Matt Hancock, the same, even if they are not a controller or processor.

Section 142 of the DPA empowers the Commissioner to serve “Information Notices”. These fall broadly into two types: those served on a controller or processor requiring them to provide information which the Commissioner reasonably requires for the purposes of carrying out his functions under the data protection legislation; and those requiring

any person to provide the Commissioner with information that the Commissioner reasonably requires for the purposes of—

(i)investigating a suspected failure of a type described in section 149(2) or a suspected offence under this Act, or

(ii)determining whether the processing of personal data is carried out by an individual in the course of a purely personal or household activity.

And by section 155(1) of the DPA, the Commissioner may serve a monetary penalty notice (aka “fine”) on any “person” who fails to comply with an Information Notice. That includes you, or me, or Matt Hancock. (Section 157(4) provides that the maximum amount is £17.5m, or 4% of global annual turnover – although I doubt that you, I, or Matt Hancock has an annual global turnover.)

All very interesting and theoretical, you might think. Well, so might Matt Hancock have thought, until an Information Notice (which the Commissioner has recently uploaded to the ICO website) dropped onto his figurative doormat last year. The Notice was in relation to the Commissioner’s investigation of the leaking of CCTV images showing the former Secretary of State for Health and Social Care and his former aide enjoying each other’s company. The investigation – which was into the circumstances of the leak, and not Matt Hancock’s conduct – concluded in April of this year, with the ICO deciding that there was insufficient evidence to justify further action. But the Notice states clearly at paragraph 7 that failure to comply is, indeed, punishable with a fine of up to £17.5m (etc.).

The Matt Hancock Notice admittedly addresses him as if he were a controller (it says the ICO is looking at his compliance with the UK GDPR) although I am not sure that is correct – Matt Hancock will indeed be a controller in respect of his constituency work, and his work as an MP outside ministerial duties, but the normal approach is that a ministerial department will be the relevant controller for personal data processed in the context of that department (thus, the Department for Health and Social Care shows as a controller on the ICO register of fee payers).

Nonetheless, the ICO also issued an Information Notice to Matt Hancock’s former aide (as well as to Helen Whateley MP, the Minister of State), and that one makes no mention of UK GDPR compliance or a suggestion she was a controller, but does also “threaten” a potential £17.5m fine.

Of course, realistically, no one, not even Matt Hancock, was really ever at risk of a huge fine (section 155(3) of the DPA requires the Commissioner to have regard to various factors, including proportionality), but it strikes me as a remarkable state of affairs that you, I or any member of the public caught up in a matter that leads to ICO investigation, and who might have relevant information, is as a matter of law vulnerable to a penalty of £17.5m if they don’t comply with an Information Notice.

Even Matt Hancock.

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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August 10, 2022 · 8:11 am

No, 43% of retail businesses have NOT been fined for CCTV breaches

A bizarre news story is doing the rounds, although it hasn’t, as far as I can see, hit anything other than specialist media. An example is here, but all the stories contain similar wording, strongly suggesting that they have picked up on and reported on a press release from the company (“Secure Redact”) that undertook the research behind the story.

We are told that

research reveals that 43% of UK retailers reported that they had been fined for a violation of video surveillance GDPR legislation…Of these retailers, 37% reported paying an equivalent of 2% of their annual turnover, 30% said the fine amounted to 3% of annual turnover, and 15% said the fine was 45% [sic] of annual turnover…A staggering 33% of those fined also had to close stores as a result of enforcement action

The research was apparently based on a survey of 500 respondents in retail businesses (50% in businesses with less than 250 employees, 50% in businesses with more than 250).

What is distinctly odd about this is that since GDPR has been in force in the UK, including since it has become – post-Brexit – UK GDPR, there has been a sum total of zero fines imposed by the Information Commissioner in respect of CCTV. 43% of retail businesses have not been fined for CCTV infringements – 0% have.

You can check here (direct link to .csv file) if you doubt me.

It’s difficult to understand what has gone wrong here: maybe the survey questions weren’t clear enough for the respondents or maybe the researchers misinterpreted the data.

Whatever the reasons behind the stories, those in the retail sector – whilst they should certainly ensure they install and operate CCTV in compliance with GDPR/UK GDPR – should not be alarmed that there is a massive wave of enforcement action on the subject which threatens to put some of them out of business.

Because there isn’t.

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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June 15, 2022 · 10:10 am

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

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March 31, 2022 · 7:27 pm

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.

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September 4, 2020 · 5:25 pm

ICO – fines, what fines?

No surprise…but ICO has only issued four notices of intent to serve a fine since GDPR came into application (and one fine)

I made a quick Freedom of Information Act (FOIA) request a few weeks ago to the Information Commissioner’s Office (ICO), asking

since 25 May 2018
1) how many notices of intent have been given under paragraph 2(1) of schedule 16 to the Data Protection Act 2018?
2) How many notices of intent given under 1) have not resulted in a monetary penalty notice being given (after the period of 6 months specified in paragraph 2(2) of the same schedule to same Act)?

I have now received (4 September) received a response, which says that four notices of intent only have been issued in that time. Three of those are well known: one was in respect of Doorstep Dispensaree (who have since received an actual fine – the only one issued under GDPR – of £275,000); two are in respect of British Airways and of Marriott Inc., which have become long-running, uncompleted sagas; the identity of the recipient of the final one is not known at the time of writing.

The contrast with some other European data protection authorities is stark: in Spain, around 120 fines have been issued in the same time; in Italy, 26; in Germany (which has separate authorities for its individual regions), 26 also.

Once again, questions must be asked about whether the aim of the legislator, in passing GDPR, to homogenise data protection law across the EU, has been anywhere near achieved.

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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August 12, 2020 · 12:26 pm

Some PECR figures in light of a new monetary penalty notice

Presented without comment.

21,166,574 unsolicited direct marketing messages

£100,000 monetary penalty

Only £1k in the bank at the last filings

Zero chance of recovery?

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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