H&H Chronicle of Data Protection : Privacy Lawyers & Attorneys : Hogan & Hartson Law Firm : Data Security, E-Commerce & Technology

The UK government has announced plans to launch a new website www.data.gov.uk , which will allow public access to official data, and has called on web-founder Sir Tim Berners-Lee, to assist.  The website aims to improve transparency and will be similar to the US site 'data.gov', which already includes information from the US defense department and NASA.

The plan, initiated by PM Gordon Brown last year, is to develop a website for the public to find information and to make reports to public service providers, including traffic and crime statistics.  In addition, various applications will be available to enable users to discover details of planning applications (in PlanningAlerts), or report potholes (in FillThatHole).

So far, the site has been in test mode, for developers to try out its features and provide feedback, but once 'live', it is hoped that public users will benefits from having the information and services in one place and see it as an alternative to requesting disclosure under the Freedom of Information Act, as BBC News reports - http://news.bbc.co.uk/1/hi/technology/8470797.stm

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Under the Data Protection Act 1998 (“DPA”), it is an offense to knowingly or recklessly obtain or disclose personal data, or the information contained in personal data, without the consent of the data controller.  Section 55 of the DPA details the offenses and any exclusions, or defenses, which may apply.  It also sets out the procedure for monetary penalties to be imposed.  Under the current law, the maximum penalty for those found guilty of offenses such as selling personal data is a £5,000 fine in the Magistrates Court and an unlimited fine in the Crown Court.  However, cases leading to substantial fines are rare.

The Ministry of Justice (which oversees the Information Commissioner’s Office) has recently announced a consultation exercise to decide whether to introduce tougher penalties for breaches of section 55, DPA, which could lead to the introduction of custodial sentences for those convicted.  Although provision was made to introduce prison sentences through the Criminal Justice and Immigration Act 2008, this has yet to be implemented and is subject to the consultation exercise, which is expected to close on 7 January 2010.

If adopted as law, the maximum penalty for the knowing or reckless misuse of personal data would be a prison sentence of up to 12 months (if heard in the Magistrates Court) or up to 2 years (if heard in the Crown Court).  This is an important development for the ICO, which has fairly limited powers of enforcement, and is arguably a necessary response to the increasingly serious breaches of the DPA involving the misuse of personal data.
 

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The United Kingdom Information Commissioner's Office ("ICO") has announced that with effect from 1 October 2009, a new notification fee of £500 will be payable by some larger organizations.  This is the first change to the fee structure since the Data Protection Act 1998 became law in 2000.

Notification is the process by which data controllers register with the ICO.  It is a mandatory requirement for organizations which process personal information in the UK.  

The new £500 per annum fee will apply to a higher tier of:

• data controllers in the private sector with a turnover of £25.9 million and 250 or more members of staff; and

• data controllers in the public sector with 250 or more members of staff.

The standard notification fee is otherwise £35 per year and this will remain so for organizations in the lower tier category.  The ICO has also confirmed that registered charities will not pay the higher fee, regardless of their size.

The increase in fees for larger organizations will, according to the ICO, help increase activity in terms of audits and investigations.   An interesting comment, which should be noted by data controllers.
 

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UPS Ltd has joined the ever-increasing number of companies featuring in the ‘Enforcement’ section of the UK Information Commissioner’s website, for failing to ensure the adequate security of personal data, which was held on an unencrypted laptop.

Security is one of the key data protection principles set out in Schedule 1, Part 1, of the Data Protection Act 1998 (the “DPA”) and although organizations are familiar with the principle, the basic elements of protecting data can still be overlooked. As a reminder, the DPA requires all ‘data controllers’ (such as UPS Ltd in this case) to comply with the eight data protection principles. The seventh principle deals with the security of personal data and provides that data controllers must take “appropriate technical and organizational measures against unauthorized or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data”. This means, for example, using password protection and encryption on portable hardware, such as laptops and memory devices. Of course, such measures are only effective if everyone knows about them and uses them appropriately.

This recent decision involved the loss of personal data when a UPS employee’s laptop was stolen, whilst on business abroad last year. The laptop was unencrypted and was never recovered.

Unfortunately (but as is often the case) it held personal data belonging to some 9,150 UK-based employees. Worse still, the data was payroll-related and so contained information relating to employees’ names, dates of birth, National Insurance numbers, salary and bank details.
Whilst there is no legal requirement to inform the Information Commissioner’s Office (ICO) of a DPA breach, UPS Ltd’s lawyers made the notification for their client, presumably recognizing the harm that could result from the loss of such data, for the employees themselves and also for the company’s reputation.

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