Tag Archives: data protection

Blackpool Displeasure Breach, redux

Over a year ago I blogged about a tweet by a member of the Oyston family connected with Blackpool FC:

a fan replies to a news item about the club’s manager, and calls the Oyston family “wankers”. Sam Oyston responds by identifying the seat the fan – presumably a season-ticket holder – occupies, and implies that if he continues to be rude the ticket will be withdrawn

For the reasons in that post I thought this raised interesting, and potentially concerning, data protection issues, and I mentioned that the Information Commissioner’s Office (ICO) had powers to take action. It was one of (perhaps the) most read posts (showing, weirdly, that football is possibly more of interest to most people than data protection itself) and it seemed that some people did intend complaining to the ICO. So, recently, I made an FOI request to the ICO for any information held by them concerning Blackpool FC’s data protection compliance. This was the reply

We have carried out thorough searches of the information we hold and have identified one instance where a member of the public raised concerns with the ICO in September 2014, about the alleged processing of personal data by Blackpool FC.

We concluded that there was insufficient evidence to consider the possibility of a s55 offence under the Data Protection Act 1998 (the DPA), and were unable to make an assessment as the individual had not yet raised their concerns with Blackpool FC direct.  We therefore advised the individual to contact the Club and to come back to us if they were still concerned, however we did not hear from them again.  As such, no investigation took place, nor was any assessment made of the issues raised.

This suggests the ICO appears wrongly to consider itself unable to undertake section 42 assessments under the Data Protection Act 1998 unless the data subject has complained to the data controller – a stance strongly criticised by Dr David Erdos on this blog, and one which has the potential to put the data subject further in dispute with the data controller (as I can imagine could have happened here, with a family some of whose members are ready to sue to protect their reputation). It also suggests though that maybe people weren’t quite as interested as the page views suggested. Nonetheless, I am posting this brief update, because a few people asked about it.

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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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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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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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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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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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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Filed under consent, Data Protection, enforcement, Information Commissioner, marketing, PECR, spam

Google’s Innuendo

If you search on Google for my name, Jon Baines, or the full version, Jonathan Baines, you see, at the foot of the page of search results

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

Oh-ho! What have I been up to recently? Well, not much really, and certainly nothing that might have led to results being removed under data protection law. Nor similarly, have John Keats, Eleanor Roosevelt and Nigel Molesworth (to pick a few names at random), a search on all of whose names brings up the same message. And, of course, if you click the hyperlink marked by the words “Learn more” you find out in fact that Google has simply set its algorithms to display the message in Europe

when a user searches for most names, not just pages that have been affected by a removal.

It is a political gesture – one that reflects Google’s continuing annoyance at the 2014 decision – now forever known as “Google Spain” – of the Court of Justice of the European Union which established that Google is a data controller for the purpose of search returns containing personal data, and that it must consider requests from data subjects for removal of such personal data. A great deal has been written about this, some bad and some good (a lot of the latter contained in the repository compiled by Julia Powles and Rebekah Larsen) and I’m not going to try to add to that, but what I have noticed is that a lot of people see this “some results may have been removed” message, and become suspicious. For instance, this morning, I noticed someone tweeting to the effect that the message had come up on a search for “Chuka Umunna”, and their supposition was that this must relate to something which would explain Mr Umunna’s decision to withdraw from the contest for leadership of the Labour Party. A search on Twitter for “some results may have” returns a seething mass of suspicion and speculation.

Google is conducting an unnecessary exercise in innuendo. It could easily rephrase the message (“With any search term there is a possibility that some results may have been removed…”) but chooses not to do so, no doubt because it wants to undermine the effect of the CJEU’s ruling. It’s shoddy, and it drags wholly innocent people into its disagreement.

Furthermore, there is an argument that the exercise could be defamatory. I am not a lawyer, let alone a defamation lawyer, so I will leave it to others to consider that argument. However, I do know a bit about data protection, and it strikes me that, following Google Spain, Google is acting as a data controller when it processes a search on my name, and displays a list of results with the offending “some results may have been removed” message. As a data controller it has obligations, under European law (and UK law), to process my personal data “fairly and lawfully”. It is manifestly unfair, as well as wrong, to insinuate that information relating to me might have been removed under data protection law. Accordingly, I’ve written to Google, asking the message to be removed

Google UK Ltd
Belgrave House
76 Buckingham Palace Road
London SW1W 9TQ

16 May 2015

Dear Google

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]

With best wishes,
Jon Baines

 

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. Some words may have been removed under data protection law.

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Vidal-Hall v Google, and the rise of data protection ambulance-chasing

Everyone knows the concept of ambulance chasers – personal injury lawyers who seek out victims of accidents or negligence to help/persuade the latter to make compensation claims. With today’s judgment in the Court of Appeal in the case of Vidal-Hall & Ors v Google [2015] EWCA Civ 311 one wonders if we will start to see data protection ambulance chasers, arriving at the scene of serious “data breaches” with their business cards.

This is because the Court has made a definitive ruling on the issue, discussed several times previously on this blog, of whether compensation can be claimed under the Data Protection Act 1998 (DPA) in circumstances where a data subject has suffered distress but no tangible, pecuniary damage. Section 13 of the DPA provides that

(1)An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.

(2)An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—

(a)the individual also suffers damage by reason of the contravention

This differs from the wording of the European Data Protection Directive 95/46/ec, which, at Article 23(1) says

Member States shall provide that any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with the national provisions adopted pursuant to this Directive is entitled to receive compensation from the controller for the damage suffered

It can be seen that, in the domestic statutory scheme “distress” is distinct from “damage”, but in the Directive, there is just a single category of “damage”. The position until relatively recently, following Johnson v Medical Defence Union [2007] EWCA Civ 262, had been that it meant pecuniary damage, and this in turn meant, as Buxton LJ said in that case, that “section 13 distress damages are only available if damage in the sense of pecuniary loss has been suffered”. So, absent pecuniary damage, no compensation for distress was available (except in certain specific circumstances involving processing of personal data for journalistic, literary or artistic purposes). But, this, said Lord Dyson and Lady Justice Sharp, in a joint judgment, was wrong, and, in any case, they were not bound by Johnson because the relevant remarks in that case were in fact obiter.  In fact, they said, section 13(2) DPA was incompatible with Article 23 of the Directive:

What is required in order to make section 13(2) compatible with EU law is the disapplication of section 13(2), no more and no less. The consequence of this would be that compensation would be recoverable under section 13(1) for any damage suffered as a result of a contravention by a data controller of any of the requirements of the DPA

As Christopher Knight says, in a characteristically fine and exuberant piece on the Panopticon blog, “And thus, section 13(2) was no more”.

And this means a few things. It certainly means that it will be much easier for an aggrieved data subject to bring a claim for compensation against a data controller which has contravened its obligations under the DPA in circumstances where there is little, or no, tangible or pecuniary damage, but only distress. It also means that we may well start to see the rise of data protection ambulance chasers – the DPA may not give rise to massive settlements, but it is a relatively easy claim to make – a contravention is often effectively a matter of fact, or is found to be such by the Information Commissioner, or is conceded/admitted by the data controller – and there is the prospect of group litigation (in 2013 Islington Council settled claims brought jointly by fourteen claimants following disclosure of their personal data to unauthorised third parties – the settlement totalled £43,000).

I mentioned in that last paragraph that data controller sometimes concede or admit to contraventions of their obligations under the DPA. Indeed, they are expected to by the Information Commissioner, and the draft European General Data Protection Regulation proposes to make it mandatory to do so, and to inform data subjects. And this is where I wonder if we might see another effect of the Vidal-Hall case – if data controller know that by owning up to contraventions they may be exposing themselves to multiple legal claims for distress compensation, they (or their shareholders, or insurers) may start to question why they should do this. Breach notification may be seen as even more of a risky exercise than it is now.

There are other interesting aspects to the Vidal-Hall case – misuse of private information is, indeed, a tort, allowing service of the claims against Google outside jurisdiction, and there are profound issues regarding the definition of personal data which are undecided and, if they go to trial, will be extremely important – but the disapplying of section 13(2) DPA looks likely to have profound effects for data controllers, for data subjects, for lawyers and for the landscape of data protection litigation in this country.

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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Filed under Breach Notification, damages, Data Protection, Directive 95/46/EC, GDPR, Information Commissioner

A data protection justice gap?

On the 4th March the Supreme Court handed down judgment in the conjoined cases of Catt and T v Commissioner of Police of the Metropolis ([2015] UKSC 9). Almost unanimously (there was one dissenting opinion in Catt) the appeals by the Met were allowed. In brief, the judgments held that the retention of historical criminal conviction data was proportionate. But what I thought was particularly interesting was the suggestion (at paragraph 45) by Lord Sumption (described to me recently as “by far the cleverest man in England”) that T‘s claim at least had been unnecessary:

[this] was a straightforward dispute about retention which could have been more appropriately resolved by applying to the Information Commissioner. As it is, the parties have gone through three levels of judicial decision, at a cost out of all proportion to the questions at stake

and as this blog post suggests, there was certainly a hint that costs might flow in future towards those who choose to litigate rather than apply to the Information Commissioner’s Office (ICO).

But I think there’s a potential justice gap here. Last year the ICO consulted on changing how it handled concerns from data subjects about handling of their personal data. During the consultation period Dr David Erdos wrote a guest post for this blog, arguing that

The ICO’s suggested approach is hugely problematic from a rule of law point of view. Section 42 of the Data Protection Act [DPA] is crystal clear that “any person who is, or believes himself to be, directly affect by any processing of personal data” may make a request for assessment to the ICO “as to whether it is likely or unlikely that the processing has been or is being carried out in compliance with the provisions” of the Act. On receiving such a request the Commissioner “shall make an assessment” (s. 42 (1)) (emphasis added). This duty is an absolute one

but the ICO’s response to the consultation suggested that

We are…planning to make much greater use of the discretion afforded to us under section 42 of the legislation…so long as a data controller has provided an individual with a clear explanation of their processing of personal information, they are unlikely to need to describe their actions again to us if the matter in question does not appear to us to represent a serious issue or we don’t believe there is an opportunity for the data controller to improve their information rights practice

which is problematic, as section 42 confers a discretion on the ICO only as to the manner in which an assessment shall be made. Section 42(3) describes some matters to which he may have regard in determining the manner, and these include (so are not exhaustive) “the extent to which the request appears to him to raise a matter of substance”. I don’t think “a matter of substance” gets close to being the same as “a serious issue”: a matter can surely be non-serious yet still of substance. So if the discretion afforded to the ICO under section 42 as to the manner of the assessment includes a discretion to rely solely on prior correspondence between the data controller and the data subject, this is not specified in (and can only be inferred from) section 42.

Moreover, and interestingly, Article 28(4) of the European Data Protection Directive, which is transposed in section 42 DPA, confers no such discretion as to the manner of assessment, and this may well have been one of the reasons the European Commission began protracted infraction proceedings against the UK (see Chris Pounder blog posts passim).

Nonetheless, the outcome of the ICO consultation was indeed a new procedure for dealing with data subjects’ concerns. Their website now says

Should I raise my concern with the ICO?

If the organisation has been unable, or unwilling, to resolve your information rights concern, you can raise the matter with us.  We will use the information you have provided, including the organisation’s response to your concerns, to decide if your concern provides an opportunity to improve information rights practice.

If we think it does provide that opportunity, we will take appropriate action

“Improving information rights practice” refers to the ICO’s general duties under section 51 DPA, but what is notable by its absence there, though, is any statement that the ICO’s general duty, under section 42, to make an assessment as to whether it is likely or unlikely that the processing has been or is being carried out in compliance with the provisions of the DPA.

Lord Sumption in Catt (at 34) also said that “Mr Catt could have complained about the retention of his personal data to the Information Commissioner”. This is true, but would the ICO have actually done anything? Would it have represented a “serious issue”? Possibly not  – Lord Sumption describes the background to Mrs T’s complaints as a “minor incident” and the retention of her data as a “straightforward dispute”. But if there are hints from the highest court of the land that bringing judicial review proceedings on data protection matters might results in adverse costs, because a complaint to the ICO is available, and if the ICO, however, shows reluctance to consider complaints and concerns from aggrieved data subjects, is there an issue with access to data protection justice? Is there a privacy justice gap?

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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Parties, party leaders and data protection registration

UPDATE 24.03.15 The ICO has confirmed to me that none of George Galloway, the Respect Party and Nigel Farage has an entry on the statutory register of data controllers (section 19 of the Data Protection 1998 refers). Might they, therefore, be committing a criminal offence? Natalie Bennett, not being an elected representative, does not necessarily need to register. END UPDATE

George Galloway, the Respect Party, Nigel Farage and Natalie Bennett all appear not to have an entry in the ICO’s online register of data controllers. Failure to have an entry in the actual register constitutes a criminal offence if no exemption can be claimed.

I’ve written before on the subject of politicians and notification under the Data Protection Act 1998 (DPA). To recap:

Section 17 of the DPA states in broad terms that a data controller (a person who solely or jointly “determines the purposes for which and the manner in which any personal data are, or are to be, processed”) must not process personal data unless “an entry in respect of the data controller is included in the register maintained by the [Information] Commissioner” (IC) or unless a relevant exemption to registration applies. Accordingly (under section 18) a relevant data controller must make a notification to the IC stating (again in broad terms) what data it is processing and for what purposes, and must pay a fee of either £35 or £500 (depending on the size of the organisation which is the controller). Section 19 describes the register itself and also provides that registration lasts for twelve months, after which a renewed notification must be made, with payment of a further fee.

Section 21 creates an offence the elements of which will be made out if a data controller who cannot claim an exemption processes personal data without an entry being made in the register. Thus, if a data controller processes personal data and has not notified the IC either initially or at the point of renewal, that controller will be likely to have committed a criminal offence (there is a defence if the controller can show that he exercised all due diligence to comply with the duty).

Political parties, and members of parliaments process personal data (for instance of their constituents) in the role of data controller, and cannot avail themselves of an exemption. Thus, they have an obligation to register, and thus it is, for example, that the Prime Minister has this entry in the register

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and so it is that Stuart Agnew, UKIP Member of the European Parliament, has this entry

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and so it is that the Liberal Democrats have this entry

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(all the entries have more information in them than those screenshots show).

But, as I have written before, not all politicians appear to comply with these legal obligations under the DPA. And this morning I noticed lawyer Adam Rose tweeting about the fact that neither George Galloway MP, nor his Respect Party appeared to have an entry on the IC register. This certainly seems to be the case, and I took the opportunity to ask Mr Galloway whether it was correct (no response as yet). It is also worth noting that back in 2012 the IC stated that

it appears that the Respect Party has not notified under the DPA at any time since its formation in November 2004….[this has] been brought to the attention of our Non-Notification Team within our Enforcement Department. They will therefore consider what further action is appropriate in the circumstances

It must be born in mind, however, that non-appearance on the online searchable register is not proof of non-appearance on the actual register. The IC says

It is updated daily. However, due to peaks of work it may be some time before new notifications, renewals and amendments appear in the public register. Please note data controllers are deemed notified from the date we receive a valid form and fee. Therefore the fact that an entry does not appear on the public register does not mean that the data controller is committing a criminal offence

Nonetheless, the online register is there for a purpose – it enables data subjects to get reassurance that those who process their personal data do so lawfully. Non-appearance on the online register is at least cause for concern and the need for clarification from the IC and/or the data controller.

And it is not just Mr Galloway and the Respect Party who don’t appear on the online register. I checked for registrations for some of the other main party leaders: David Cameron, Ed(ward) Miliband and Nick Clegg all have registrations, as do Nicola Sturgeon and Peter Robinson, but Nigel Farage, Leader of UKIP and Natalie Bennett, Leader of the Green Party appear not to.

At all times, but especially in the run up to the general election, voters and constituents have a right to have their personal information handled lawfully, and a right to reassurances from politicians that they will do so. For this reason, it would be good to have clarification from Mr Galloway, the Respect Party, Mr Farage and Ms Bennett, as to why they have no entry showing in the IC’s online register. And if they do not have an entry in the register itself, it would be good to have clarification from the IC as to what action might be taken.

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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