Tag Archives: PECR

July 7, 2014 · 7:21 am

Privacy issues with Labour Party website

Two days ago I wrote about a page on the Labour Party website which was getting considerable social media coverage. It encourages people to submit their date of birth to find out, approximately, of all the births under the NHS, what number they were.

I was concerned that it was grabbing email address without an opt-out option. Since then, I’ve been making a nuisance of myself asking, via twitter, various Labour politicians and activists for their comments. I know I’m an unimportant blogger, and it was the weekend, but only one chose to reply: councillor for Lewisham Mike Harris, who, as campaign director for DontSpyOnUs, I would expect to be concerned, and, indeed, to his credit, he said “You make a fair point, there should be the ability to opt out”. Mike suggested I email Labour’s compliance team.

In the interim I’d noticed that elsewhere on the Labour website there were other examples of emails being grabbed in circumstances where people would not be sure about the collection. For instance: this “calculator” which purports to calculate how much less people would pay under Labour for energy bills, which gives no privacy notice whatsoever. Or even this, on the home page, which similarly gives no information about what will happen with your data

homepage

Now, some might say that, if you’re giving your details to “get involved”, then you are consenting to further contact. This is probably true, but it doesn’t mean the practice is properly compliant with data collection laws. And this is not unimportant; as well as potentially contributing to the global spam problem, poor privacy notices/lack of opt-out facilities at the point of collection of email address contribute to the unnecessary amassing of private information, and when it is done by a political party, this can even be dangerous. It should not need pointing out that, historically, and elsewhere in the world, political party lists have often been used by opposition parties and repressive governments to target and oppress activists. Indeed, the presence of one’s email on a party marketing database might well constitute sensitive personal data – as it can be construed as information on one’s political opinions (per section 2 of the Data Protection Act 1998).

So, these are not unimportant issues, and I decided to follow Mike Harris’s suggestion to email Labour’s compliance unit. However, the contact details I found on the overarching privacy policy merely gave a postal address. I did notice though that that page said

If you have any questions about our privacy policy, the information we have collected from you online, the practices of this site or your interaction with this website, please contact us by clicking here

But if I follow the “clicking here” link, it takes me to – wait for it – a contact form which gives no information whatsoever about what will happen if I submit it, other than the rather stalinesque

The Labour Party may contact you using the information you supply

And returning to the overarching privacy policy didn’t assist here – none of the categories on that page fitted the circumstances of someone contacting the party to make a general enquiry.

I see that the mainstream media have been covering the NHS birth page which originally prompted me to look at this issue. Some, like the Metro, and unsurprisingly, the Mirror, are wholly uncritical. The Independent does note that it is a clever way of harvesting emails, but fails to note the questionable legality of the practice. Given that this means that more and more email addresses will be hoovered up, without people fully understanding why, and what will happen with them, I really think that senior party figures, and the Information Commissioner, should start looking at Labour’s online privacy activities.

(By the way, if anyone thinks this is a politically-motivated post by me, I would point out that, until 2010, when I voted tactically (never again), I had only ever voted for one party in my whole life, and that wasn’t the Conservatives or the Lib Dems.)

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July 5, 2014 · 9:03 am

Labour Party website – unfair processing?

Earlier this year I wrote about a questionable survey on the Conservative Party website, which failed to comply with the legal requirements regarding capture of email addresses. It is perhaps unsurprising to see something similar now being done in the name of the Labour Party.

An innocuous looking form on Labour’s donation pages lies underneath a statement that almost 44 million babies have been delivered under NHS care since 1948. The form invites people to find out what number their birth was. There are of course lots of this type of thing on the internet: “What was number one when you were born?” “Find out which Banana Split you are” etc. But this one, as well as asking for people’s date of birth, asks for their (first) name, email address and postcode. And, sure enough, underneath, in small print that I suspect they hope people won’t read, it says

The Labour Party and its elected representatives may contact you about issues we think you may be interested in or with campaign updates. You may unsubscribe at any point

So, they’ll have your email address, your first name and a good idea of where you live (cue lots of “Hi Jon” emails, telling me about great initiatives in my area). All very predictable and dispiriting. And also almost certainly unlawful: regulation 22(2) of The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) says that

a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent by, or at the instigation of, the sender

This Labour web page impermissibly infers consent. The European Directive  to which PECR give domestic effect makes clear in recital 40 that electronic marketing requires that prior, explicit consent  be obtained. Furthermore the Information Commissioner’s Office (ICO), issues clear guidance on PECR and marketing, and this says

Organisations must give the customer the chance to opt out – both when they first collect the details, and in every email or text. Organisations should not assume that all customers will be happy to get marketing texts or emails in future…It must be simple to opt out. When first collecting a customer’s details, this should be part of the same process (eg online forms should include a prominent opt-out box…

The ICO’s guidance on political campaigning is (given the likelihood of abuse) disappointingly less clear, but it does say that “An organisation must have the individual’s consent to communicate with them [by email]”. I rather suspect the Labour Party would try to claim that the small print would suffice to meet this consent point, but a) it wouldn’t get them past the hurdle of giving the option to opt out at the point of collection of data, and b) in the circumstances it would crash them into the hurdle of “fairness”. The political campaigning guidance gives prominence to this concept

It is not just in an organisation’s interests to act lawfully, but it should also have respect for the privacy of the individuals it seeks to represent by treating them fairly. Treating individuals fairly includes using their information only in a way they would expect

I do not think the majority of people completing the Labour Party’s form, which on the face of it simply returns a number relating to when they were born, would expect their information to be used for future political campaigning. So it appears to be in breach of PECR, not fair, and also, of course (by reference to the first principle in Schedule One) in breach of the Data Protection Act 1998. Maybe the ICO will want to take a look.

UPDATE:

I see that this page is being pushed quite hard by the party. Iain McNicol, General Secretary, and described as “promoter” of the page has tweeted about it, as have shadow Health Secretary Andy Burnham and Ed Miliband himself. One wonders how many email addresses have been gathered in this unfair and potentially unlawful way.

 

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June 15, 2014 · 9:08 pm

Virgin on the ridiculous

UPDATE 15.12.14: I think the comments on this piece take it further, and I do accept (as I did at the time, in fact) that the “password” in question was not likely to relate to customers’ accounts.
END UPDATE.

I got into a rather odd exchange over the weekend with the people running the Virgin Media twitter account. It began when, as is my wont, I was searching for tweets about “data protection” and noticed an exchange in which someone had asked Virgin Media whether their sales people rang customers and asked them to give their passwords. Virgin Media kindly appeared to confirm they did, and that

it’s for security as we can’t make any changes without data protection being passed

I asked for clarification, and this exchange ensued

[ME] Is it true your sales people call customers and ask for their account passwords? If so, are these unsolicited calls?

[VM] Yes this is true, our sales team would call and before entering your account, would need you to pass account security. I understand for your own security purposes why you wouldn’t feel great doing this, i’d be the same. If you give us a call on 150/03454541111 we can get this cleared up. Let me know how you get on

[ME] Thanks. Not a customer. Just interested in what seems like questionable practice being defended under guise of data protection

[VM] We contact our customers if there upgrade is due, or for a heath check on accounts, and a few other instances, but I get where your coming from [sic]

There’s nothing unlawful about this practice, and I assume that the accounts in question are service and not financial ones, but it doesn’t accord with normal industry practice. Moreover, one is warned often enough about the risks of phishing calls asking for account passwords. If a legitimate company requires or encourages its sales staff to do this, it adds to a culture of unnecessary risk. There are better ways of verifying identity, as their social media person seems to accept, when they say “I understand for your own security purposes why you wouldn’t feel great doing this, i’d be the same”.

One thing I’m certain about, though, is that isn’t any part of “passing data protection” (unless they mean bypassing) to make outbound calls and ask for customer passwords.

On a final note, and in admiration of bare-faced cheek, I highlight the end of my exchange with Virgin Media

If you want, as your not a customer, you can check out our brill offers here [removed] maybe we could save you a few pounds?

That’s an offer I most certainly can refuse.

(By the way, as it’s an official Virgin Media account, I’ve taken what I was told on Twitter at face value. If I have misunderstood any of their policies on this I’d be happy to correct).

UPDATE:

Virgin Media’s Twitter account appears to have confirmed to me a) that they do ask for customers’ passwords on outbound sales calls, and b) that they see nothing wrong with it. And rather hilariously, they say that “we can discuss further” if I will “pop a few details” on their web form for social media enquiries. No thanks.

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Filed under Data Protection, Let's Blame Data Protection, marketing, nuisance calls, PECR, social media

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June 13, 2014 · 12:23 pm

Ticking off Neelie Kroes (sort of)

In which I take issue with the European Commission V-P about what the Consumer Rights Directive says about pre-ticked boxes

I found myself retweeting what I think was a rather misleading message from the Vice-President of the European Commission, Neelie Kroes. Her tweet said

You know those annoying “pre-ticked boxes” on shopping/travel websites? They’re banned in #EU from today http://europa.eu/rapid/press-release_IP-14-655_en.htm#eCommerce

I thought this was very interesting, particularly in light of my recent post about the implying of consent to electronic marketing if people forget to untick such boxes. The EU press release itself does say at one point

Under the new EU rules…consumers can now rely on…A ban on pre-ticked boxes on the internet, as for example when they buy plane tickets

But, it earlier says

The new rules also ban…pre-ticked boxes on websites for charging additional payments (for example when buying plane tickets online)

The emphasis I’ve added in that last quote is crucial. What DIRECTIVE 2011/83/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2011 on consumer rights actually proscribes is the contractual binding of a consumer to any payment in addition to the original remuneration agreed on if

the trader has not obtained the consumer’s express consent but has inferred it by using default options which the consumer is required to reject in order to avoid the additional payment

 So, as the press release explains,

When shopping online –for example when buying a plane ticket – you may be offered additional options during the purchase process, such as travel insurance or car rental. These additional services may be offered through so-called pre-ticked boxes. Consumers are currently often forced to untick those boxes if they do not want these extra services. With the new Directive, pre-ticked boxes will be banned across the European Union.

I happen to think that that text should more properly say “With the new Directive, pre-ticked boxes of this sort will be banned across the European Union”.

So, no ban on pre-ticked boxes themselves, just on those which purport to bind a consumer to an additional payment under a contract.

The Directive has been implemented in the UK by  The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 and associated The Enterprise Act 2002 (Part 8 EU Infringements) Order 2013 the former of which says (at regulation 40)

Under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent.. There is no express consent (if there would otherwise be) for the purposes of this paragraph if consent is inferred from the consumer not changing a default option (such as a pre-ticked box on a website)

Having said all this, I do think it is interesting that clearly-defined concepts of “express consent” are making their way into European and domestic legislation. And in due course, we may even find that, for instance, electronic marketing will be restrained unless similarly clearly-defined express consent is given. But not just yet.

Update: Ms Kroes kindly replied to me, saying it’s difficult to get a message across in 140 characters. So true.

 

 

 

 

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June 6, 2014 · 12:11 pm

Piles of cash for claiming against spammers? I’m not so sure

I am not a lawyer, but I’m pretty certain that most commercial litigation strategies will be along the lines of “don’t waste lots of money fighting a low-value case which sets no precedent”. And I know it is a feature of such litigation that some companies will not even bother defending such cases, calculating that doing so will cost the company much more, with no other gain.

With this in mind, one notes the recent case of Sky News producer Roddy Mansfield. His employer itself reported (in a piece with a sub-heading  “John Lewis is prosecuted…”, which is manifestly not the case – this was a civil matter) that

John Lewis has been ordered to pay damages for sending “spam” emails in a privacy ruling that could open the floodgates for harassed consumers.

Roddy Mansfield, who is a producer for Sky News, brought the case under EU legislation that prohibits businesses from sending marketing emails without consent

The case appears to have been brought under regulation 30 of The Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR). Those regulations, as the title suggests, give effect to the UK’s obligations under the snappily titled Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector. Regulation 30(1) of PECR provides that

A person who suffers damage by reason of any contravention of any of the requirements of these Regulations by any other person shall be entitled to bring proceedings for compensation from that other person for that damage

It appears that Mr Mansfield created an account on the John Lewis website, and omitted to “untick” a box which purported to convey his consent to John Lewis sending him marketing emails. It further appears that in the County Court Mr Mansfield successfully argued that the subsequent sending of such emails was in breach of regulation 22(2), which provides in relevant part that

a person shall neither transmit, nor instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he consents for the time being to such communications being sent…

Assuming that this accurately reflects what happened, I think Mr Mansfield was probably correct to argue that John Lewis had breached the regulations: the Information Commissioner’s Office (ICO) guidance states that

Some organisations provide pre-ticked opt-in boxes, and rely on the user to untick it if they don’t want to consent. In effect, this is more like an opt-out box, as it assumes consent unless the user clicks the box. A pre-ticked box will not automatically be enough to demonstrate consent, as it will be harder to show that the presence of the tick represents a positive, informed choice by the user

For a detailed exposition of the PECR provisions in play, see Tim Turner’s excellent recent blog post on this same story.

I’ve used the word “appears” quite a bit in this post, because there are various unknowns in this story. One of the main missing pieces of information is the actual amount of damages awarded to Mr Mansfield. Unless (and it is not the case here) exemplary or aggravated damages are available, an award will only act as compensation. It has been said that

The central purpose of a civil law award of damages is to compensate the claimant for the damage, loss or injury he or she has suffered as a result of another’s acts or omissions, and to put the claimant in the same position as he or she would have been but for the injury, loss or damage, so far as this is possible

So I doubt very much whether the award to Mr Mansfield was anything other than a small sum (so the albeit tongue-in-cheek Register reference to a PILE OF CASH is very probably way off the mark) . I have asked him via his twitter account for details, but have had no reply as yet.

Perhaps the most important aspect of this story, though, is the extent to which it indicates the way the courts might interpret the relevant consent provisions of PECR. As this was a case in the County Court it sets no precedent, and, unless someone decides to pay for a transcript of the hearing we’re very unlikely to get any written judgment or law report, but the principles at stake are profound ones, concerning how electronic marketing communications can be lawfully sent, and about what “consent” means in this context.

The issue will not go away, and, although I suspect (referring back to my opening paragraph) that John Lewis chose not to appeal because the costs of doing so would have vastly outweighed the costs of settling the matter by paying the required damages, it would greatly benefit from some proper consideration by a higher court.

And another important aspect of the story is whether behaviours might change as a result. Maybe they have: I see that John Lewis, no doubt aware that others might take up the baton passed on by Mr Mansfield, have quietly amended their “create an account” page, so that the opt-in box is no longer pre-ticked.

jl

UPDATE: 7 June

In a comment below a pseudonymed person suggests that the damages award was indeed tiny – £10 plus £25 costs. It also suggests that John Lewis tried to argue that they were permitted to send the emails by virtue of the “soft opt-in” provisions of regulation 22(3) PECR, perhaps spuriously arguing that Mr Mansfield and they were in negotiations for a sale.

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March 15, 2014 · 11:38 am

Analysis prompted by Morrisons “data breach”

Yesterday’s data breach involving Morrisons supermarket and its staff payroll illustrates how difficult it is properly to handle such incidents, and perhaps provides some learning points for the future. But also raises issues about what is a “data breach”

What do we mean by “data breach”, “personal data breach”, “data security breach” etc?

The draft European General Data Protection Regulation (GDPR), which continues to slouch its way towards implementation, says in its current form that

In the case of a personal data breach, the controller shall without undue delay notify the personal data breach to the supervisory authority [and]

When the personal data breach is likely to adversely affect the protection of the personal data, the privacy, the rights or the legitimate interests of the data subject, the controller shall, after the notification referred to in Article 31, communicate the personal data breach to the data subject without undue delay

“without undue delay” is, by virtue of (current) recital 67, said to be “not later than 72 hours” (in the original draft it was “where feasible, within 24 hours”). However “personal data breach” is not defined – it is suggested rather that the proposed European Data Protection Board will set guidelines etc for determining what a “breach” is.What is not clear to me is whether a “breach” is to be construed as “a breach of the data controller’s legal obligations under this Regulation”, or, more generally, “a breach of data security”. Certainly under the current domestic scheme there is, I would argue, confusion about this. A “breach of data security” is not necessarily equivalent to a breach of the Data Protection Act 1998 (DPA). To give a ludicrous example: if a gunman holds a person hostage, and demands that they unencrypt swathes of personal data from a computer system and give it to them, then it is hard to see that the data controller has breached the DPA, which requires only that “appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data” (which clearly cannot be construed as an unlimited obligation) but there has most certainly been a breach of data security.

It is unclear whether Morrisons chose to inform the Information Commissioner (ICO) about their incident, but the wording they’ve used to describe it suggests they are seeing this not as a breach of their obligations under the DPA, but as a potentially criminal act of which they were the victim: on their Facebook page they describe it as an “illegal theft of data” and that they are liaising with “the police and highest level of cyber crime authorities” (a doughnut to anyone who can explain to me what the latter is, by the way). If an offence has been committed under section 55 of the DPA (or possibly under the Computer Misuse Act 1990) there is a possible argument that the data controller is not at fault (although sometimes the two can go together – as I discuss in a recent post). Morrisons make no mention of the ICO, although I have no doubt that they (ICO) will now be aware and making enquiries. And, if Morrisons’ initial assessment was that they hadn’t breached the DPA (i.e. that they had taken the appropriate technical and organisational measures to mean they were not in breach of the seventh DPA principle), they might quite understandably argue that there was no need to inform the ICO, who, after all, regulates only compliance with the DPA and not broader issues around security breaches. There was certainly no legal obligation under current law for Morrisons to self-notify. Plenty of data controllers do, often ones in the public sector (the NHS Information Governance toolkit even automatically delivers a message to the ICO if an NHS data controller records a qualifying incident) but even the ICO’s guidance is unclear as to the circumstances which would trigger the need to self-notify. Their guidance is called “Notification of data security breaches to the ICO” but in the overview at the very start of that guidance it says

Report serious breaches of the seventh principle
Ultimately I see it boiling down to two interpretations: report a data security breach so that the ICO can assess whether it is a serious breach of the seventh principle, or, assess the data security breach yourself, and if you assess it as a serious breach of the seventh principle, report that to the ICO. This is not obligatory under the current domestic data protection law, so to an extent it is an arid discussion, but if the obligation to notify does become obligatory under the GDPR it will become much more important.
There is one domestic law under which it is obligatory to report a “personal data breach”. The Privacy and Electronic Communications (EC Directive) Regulations 2003 amended by 2011 Regulations, require a provider of a public electronic communications service to notify the ICO of
a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed in connection with the provision of a public electronic communications service
This notably does not specify that the breach has to constitute a breach of the service provider’s DPA obligations, and one wonders if this is the sort of thing that will be specified as a breach once the GDPR is implemented.
Morrisons’ notification to data subjects

The people whose data was apparently compromised in the Morrisons “breach” were its staff – it was payroll information which was allegedly stolen and misused. It appears that Morrisons emailed those staff with internal email addresses (how many checkout staff and shelf-stackers have one of those?) and then, as any modern, forward-thinking organisation might, it posted a message on its Facebook page.However, I really wonder about that as a strategy. The comments on that Facebook page seem to be threatening to turn the incident into a personnel, and public communications disaster, with many people saying they had heard nothing until they read the message. Moreover, one wonders to what extent some staff might have been misled, or have misled themselves, into assuming that the comments they were posting were on some closed forum or network. As was suggested to me on twitter yesterday, some of the comments look to be career-limiting ones, but by engaging on its social media platform, might Morrisons be seen to have encouraged that sort of robust response from employees?

Much of this still has to play out – notably whether there was any contravention of the DPA by Morrisons – but, in a week when their financial performance came under close scrutiny, their PR handling of this “data breach” will also be looked at very closely by other data controllers for lessons in case they are ever faced with a similar situation.

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February 23, 2014 · 11:10 am

Conservative Party website – unfair processing?

The Conservative Party website is hosting a survey, but I question whether it complies with data protection and associated laws.

The first principle of the Data Protection Act 1998 (DPA) requires that any processing of personal data be fair (and lawful). If an organisation is collecting data from individuals then the person from whom it is obtained must be told the identity of the data controller, and the purpose or purposes for which the data are intended to be processed. These legal provisions (Schedule 1, DPA) are the source of the privacy notices (sometimes called “fair processing notices”) with which we are all familiar when we, for instance, make purchases, or submit forms, or, indeed, complete online surveys. As the Information Commissioner himself says, in the introduction to the ICO Privacy Notices Code of Practice

As a minimum, a privacy notice should tell people who you are, what you are going to do with their information and who it will be shared with

the Code goes on to stress that

the requirement…is strongest…where the information is sensitive

One of the things that makes personal data “sensitive” is if it consists of information as to a person’s political opinions (section 2(b), DPA) – the reasons for this barely need spelling out, but I would just note that history tells us much about the potential for abuse of information about the political affiliations or inclinations of individuals.

With all this in mind it is concerning to note that the website of the Conservative Party invites people to complete and submit an online survey, which includes, among other things, questions about the political opinions of those completing it, but whose privacy notice consists merely of

By entering your email address you agree to receive communications from us, from which you can opt-out using the “unsubscribe” link in each email we send. We will not share your details with anyone outside the Conservative Party
This is inadequate in a number of ways, but primarily because it gives no indication whatsoever what the purposes for which the (sensitive) data are to be processed. One assumes, noting the reference to receiving emails in the future, that it is for the purposes of marketing (and the ICO has made clear that political parties do engage in marketing).  Failure to gather data fairly will mean that such future marketing use would also be in default breach of the Privacy and Electronic Communications (EC Directive) Regulations 2003.
Searching the rest of the website I do see that there is a generic privacy policy, which does refer to “online polls and surveys”, but that merely says that
in addition to your answers, we collect your Internet Protocol (IP) address…[to] to help validate the results and help prevent multiple entries from individuals
It is difficult to imagine that the people responsible for this survey have had regard to the ICO’s invaluable guidance for political parties for campaigning or promotional purposes, which advises, for instance that parties should be
transparent about your use of the individual’s information
In the field of market research there is a practice known as “sugging” which the Association for Qualitative Research describes thus

Sugging (selling under the guise of market research) …[occurs] when organisations building databases, or generating sales leads, claim to be conducting market research

One does wonder if that is what is going on here, but in the absence of an adequate privacy notice, it is not possible to tell.

UPDATE: 23.03.14

It looks like they’ve amended the survey now, with a link to a privacy policy. Whether it’s a coincidence they did so around the time The Independent ran a story on the issue is difficult to say.

Anyway, it seems the ICO is investigating, so watch this space.

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June 18, 2013 · 12:10 pm

Cold Comfort for Cold Callers

In which I praise the ICO, and implore people to report nuisance callers.

I was in conversation with a group of friends recently, and the topic of nuisance calls came up. Each of my friends described continually receiving  unsolicited, often agressive, calls, despite the fact that they were registered with the Telephone Preference Scheme. I said they must complain to the Information Commissioner’s dedicated service because the ICO was now taking breaches of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) seriously (actually, I didn’t say it in quite those terms, because although my friends like to deride me, I try not to give them too much ammunition). I got a lot of replies of “I might”, but also some of “it won’t do any good”. In support of the fact that it might do some good I was able point to the three recent civil Monetary Penalty Notices (MPNs) for breaches of PECR issued to Christopher Niebel and Gary McNeish, joint owners of Tetrus Telecoms and DM Design Bedroom Ltd.

And today, two more MPNs have been issued, to two companies owned by “Save Britain Money Ltd” a company which, in what appear to be rather embarrassing circumstances for the BBC, is currently featuring in a fly-on-the-wall documentary series about call centres.

We need a regulator to take firm and public action for breaches of privacy laws, and it is pleasing to see the ICO doing so with nuisance callers. However, in order for practices to really change, nuisance callers need to be reported to the ICO, at every opportunity. The principle of a penalty pour encourager les autres only works if les autres are scared about what legal non-compliance can lead to.

And I note from a recent internal ICO report that, as at 10 June, both the DM Design and the McNeish MPNs were overdue for payment (Niebel has appealed his Notice). Penalties in the tens of thousands of pounds can potentially be ruinous for businesses. The ICO statutory guidance on MPNs provides that

a monetary penalty notice will not impose undue financial hardship on an otherwise responsible person

But this leaves open the possibility that an MPN might some times impose due hardship, on an otherwise irresponsible person. If future nuisance callers wilfully act irresponsibly, a financially-crippling MPN might not constitute undue hardship.

As someone who works in the public sector, and who trains other public sector partners in their obligations under the Data Protection Act 1998 (DPA), I can attest to the beneficial effect MPNs for DPA breaches (added to the willingness of the ICO to impose them) have had on data security and knowledge (it doesn’t half focus the minds of senior managers when you remind them that security vulnerabilities carry a risk of a £500,000 “fine”). Enforcement of the law does change things, and we should praise the ICO for what he is doing with nuisance callers, while continuing to report miscreants.

Now, how about some FOI enforcement…?

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