Secret Service

A little while ago, I noticed an interesting story on the website of the Fundraising Regulator. They reported a case where a woman had applied for a job with a charity and subsequently, she started to receive marketing from them. She asked for her details to be removed from their donor list, and the request was ignored. The story was still there when they reworked their website recently, but it now appears to have vanished.

This is a breach of Data Protection and (potentially) PECR – the charity would not have informed the person that their data was being used for marketing which is a breach of the first DP principle, they breached the second principle by re-using the data for an incompatible purpose. By ignoring her request for the marketing to stop, they breached her rights under Section 11 of the old DPA and if they sent emails, they breached PECR as well.

Given that this is a quite a serious breach of DP fundamentals, you might think that the Fundraising Regulator isn’t really the right person to deal with it. Although direct marketing forms part of the Code of Fundraising Practice, the proper regulator for both DP and PECR is the Information Commissioner. For both possible breaches, the issue of fundraising is probably the least important aspect – a charity that misuses personal data in such a profound way should be investigated by the Information Commissioner, not a non-statutory body with a relatively narrow focus.

I asked the Fundraising Regulator whether they had passed the complaint to the Information Commissioner’s Office. After a little while, I received a reply from a senior officer asking why I wanted to know. I said that I thought this was a relatively serious breach of data protection, and I wanted to know whether it had been shared with the right people. Shortly after that, I received a reply saying that they couldn’t tell me. This is an anonymised case study – the description of the case did not name the charity, or give any identifying information about the donor. The Fundraising Regulator has already decided to use the story to promote their work, and so asking whether they have shared it with the appropriate regulator (a question that has a Yes / No answer) seems entirely reasonable to me. I pushed a little, and apparently my request went up to Gerald Oppenheim, the FR’s eminently sensible Chief Executive. He also said no.

So I made an FOI request to the ICO, asking for the number of complaints the Fundraising Regulator has passed on to them, and a summary of each complaint. The ICO replied, saying that 100 complaints have been passed from the FR, and in response to my request for a summary of each complaint, they gave me whatever this is:

Charities who have failed to on-board onto the Fundraising Preference Service (FPS) portal despite receiving a request to stop communications from a member of the public.”

Weirdly they claimed that “We do not hold information in regard to the details of each complaint” but in reply to my question about what action they have taken as a result of these complaints, the answer was: “No further action, logged for future intelligence purposes”. This means that they don’t hold any information about complaints that they have logged for future intelligence purposes.

Leaving that aside, the ICO’s response doesn’t suggest that the complaint I am interested in was shared, and so I am going out on a limb to say that I think the reason that the Fundraising Regulator didn’t want to tell me whether they had shared the complaint is because they hadn’t and didn’t want to admit it.

Why does this matter? The Fundraising Regulator’s predecessor, the Fundraising Standards Board, was an inherent part of the Data Protection problems in the charity sector that exploded spectacularly with stories in the Daily Mail. Thousands of complaints were soaked up by the FRSB and never passed on, meaning that the ICO was largely unaware of marketing problems in the sector. The last thing that the FR should be doing is sitting on serious data protection issues in the same way. The ICO and the FR have signed a memorandum of understanding agreeing to share information to assist each other in carrying out their functions, and so there is a clear gateway for the FR to inform the Commissioner of complaints like this.

The problem is, I only know about this complaint because the FR was incautious enough to try to get some PR out of it. Who knows how many more complaints they have dealt with that reveal genuine data protection problems – it may be an isolated case, or there may be loads of them. The organisation’s refusal to be open about the fate of this case means it’s unlikely they’d be forthcoming if it wasn’t a one-off. The FR’s role in operating a glorified opt-out service which is arguably not really required has already attracted some justifiable criticism from the charity sector, but this issue also deserves scrutiny.

Charities have had a torrid time over the way in which some of them handled personal data – as unpopular as this will make me (again), I think much of the flack was deserved. But it isn’t helping the sector for cases like this to be buried – bad practice should be rooted out publicly and by the right people, so all can learn by example. I can’t make Freedom of Information requests to the Fundraising Regulator because they’re not covered, and given the track record of the FRSB, being told rather haughtily that “it is for our organisation and the ICO to discuss and agree what issues we should and shouldn’t be investigating” doesn’t fill me with very much confidence that the right lessons have been learned. The Fundraising Regulator should be transparent about what cases are passing through their doors, which get passed on, and which don’t. Otherwise, perhaps the Mail should start digging again.

We need to talk about Ardi

This week, Private Eye reported that the publishers Kogan Page had withdraw a book about the GDPR by Ardi Kolah, after they received allegations of plagiarism from several sources. Most references to the GDPR Handbook have been scrubbed from Kolah’s online history and Kogan Page’s website is terse, to say the least. The fate of Kolah’s book is interesting not only because the high profile author is involved in both Henley Business School’s GDPR course and the British Computer Society’s Data Protection Certificate, but because Kolah has repeatedly sought to build his reputation through an association with the Information Commissioner, Elizabeth Denham.

The ‘About the Author’ section of his book describes Kolah as having “worked closely” with Denham, and there is some substance to the claim. Not only did Denham write the foreword for the book (and also for Kolah’s luxury leather-bound edition of the GDPR), she invited him to be one of the judges of her inaugural Data Protection Officer award.

Denham’s foreword describes him admiringly as a veteran of the Data Protection sector. She describes the UK’s data protection community before her arrival from Canada as a “small group of people ready to help each other out to raise standards“. She claims Kolah was someone who “flew the flag for data protection many years before it broke into the mainstream with the GDPR“. After some flannel, she returns to the theme: “Ardi and others of his generation often walked a rather lonely path in their efforts to have data protection taken seriously by the mainstream” and praises the book as “authoritative“.

I made an FOI request to the ICO asking if she wrote the foreword because I had a sneaking suspicion that Kolah himself might have been the author. The response was emphatic: “The Commissioner wrote the foreword and was the author of the Word document that was sent to Mr Kolah with the foreword in it. Mr Kolah had no input in the content of the foreword, did not ask for any input and did not ask for any copy approval of the foreword. The version sent to him on 6th April represented the Commissioner’s final wording to appear in the book unedited and unabridged.” This means that Denham is entirely responsible for the claims about Ardi Kolah’s career in Data Protection that appear in the foreword, and I think that’s a problem.

For most of his career, Kolah has been a PR guy. He worked as head of communications or PR for a variety of different organisations between 1995 and (at least) 2012. He worked for the BBC up until 1995, but after that, he did PR for Arthur Andersen, Cancer Research and Logica among others. His own CV on LinkedIn shows him as ‘Global Head of Public Relations’ for Brit Insurance until 2012. The notion that Kolah was flying the flag for Data Protection for “many years” and he was part of a generation of people who worked thanklessly in the DP mines is plainly unsustainable. Even now, his Twitter account describes him as a “Commentator on all things sales and marketing and social media“. Kolah’s own timeline doesn’t mention Data Protection until 2012, when he says founded a company called Go DPO, and even so, it’s hard to square his version with other available information.

An experienced training consultant called Darren Verrian is also on LinkedIn, and he  says that he started work on Go DPO in May 2015, three years after Kolah. This is interesting because Verrian describes himself as ‘co-founder’ of the business. Furthermore, Companies House shows that on 2nd June 2015, Kolah and Verrian registered two companies, one called Go DPO EU Recruitment (which was dissolved in February 2018), and another called Go DPO EU Compliance (which is still trading). Subsequently, they registered Go DPO EU Advisory Services in February 2016 (dissolved in March 2018), and finally Go DPO EU Consultancy Services in August 2017 (also still trading). Weirdly, despite his claim that he was running Go DPO in 2012, a company called Genworth Financial announced on 28th May 2012 that they had hired Kolah as their Director of Communications. Kolah doesn’t mention Genworth Financial anywhere on his LinkedIn CV.

I think it’s impossible to reconcile Denham’s claims about Kolah’s longstanding involvement in Data Protection with his own CV, but the contradiction between Kolah and Verrian’s respective claims and the facts on Companies House make it worse. As far as I can see, Ardi Kolah is not a Data Protection veteran: he’s just good at PR. Since I started to make mischief at his expense, several people have approached me with stories of Kolah’s error-strewn, self-promoting performances at conferences, and his now-disgraced book is an bloated mix of turgid management-speak and basic errors.

I didn’t identify the examples of apparent plagiarism or report them to Kogan Page, but I have seen them and it’s obvious to me why the publishers withdrew the book. I think Kolah owes everyone who bought the book an apology, and Kogan Page owes them a refund (I’m aware that they did offer a refund to at least one purchaser on the proviso that he returned the book). Perhaps Kolah did Data Protection work before May 2015 but I can’t find it. Maybe he can reconcile his and Verrian’s accounts and explain why no variant of a company called Go DPO was registered in 2012. But even if 2012 really is when he started, the way Denham characterises him in her foreword is at best wildly exaggerated, and a slap in the face for those of us who really have been working on UK data protection for a long time.

Moreover, unless he can refute the plagiarism allegations (and having seen what they’re based on, it would require a lot more than spin to achieve that), I think Kolah should resign from three of his current roles. There is no way that someone guilty of plagiarism should have a role on an exam board, at a prestigious business school or as Editor-in-Chief of a widely published journal. If he does not, then the BCS, Henley Business School and the editorial board of Journal of Data Protection and Privacy (many of whom are quoted in the book endorsing it) should sack him. They cannot be seen to tolerate plagiarism. Whether his friends at Amplified Business Content (who organise many of the conferences that Kolah speaks at) or Hitachi (who employ him as a part-time DPO) still think he’s an appropriate person to work with is none of my business.

A more important question than the fate of Mr Kolah is what this mess says about Elizabeth Denham. Kolah trades on his ‘close working relationship‘ with the Commissioner. Denham should have shut down this inappropriate use of her name, but instead, she promoted both Kolah’s book and the man himself by asking him to be a judge of the DPO award. When I made an FOI request to the ICO about Denham’s relationship with Kolah, they were in denial, refusing to accept that writing a foreword was an endorsement:

it may be helpful to note that we do not consider that writing a foreword in an official capacity to be an endorsement or to be otherwise advertising a commercial product. A decision to write a foreword or review is normally taken on the basis of the ICO being aware of the author’s standing as a practitioner or expert, and the value the book adds to the information rights community

ICO comments received by Private Eye suggest that while Denham definitely wrote the foreword, she may not have even read the book. Kolah sent it to her, but the ICO said she did not study the book, relying instead on her ‘prior confidence‘ in the author. Along with several other people, I have asked the ICO to show what evidence Denham relied on to make her assertions about Kolah’s long history in UK data protection. They admit that no such information is held. Denham made assertions to support her friend and help sell his book, and I don’t think she can substantiate them.

The Information Commissioner should not endorse commercial products, and this isn’t the first time she’s been willing to lend her authority when doing so. Kolah’s book has turned out to be damaged goods, but if she’d had the sense not to endorse anything, she wouldn’t have this problem. What this says about Denham’s judgement isn’t pretty, and I think it’s untenable for her to stay silent on the matter. Rather than throwing spokespersons under the bus, Denham should explain it herself. What due diligence did she do on Kolah? Did anyone even Google him? Why does she think he’s got a long and distinguished career in Data Protection when he hasn’t? And most of all, how can she assure us that she’s independent when she can be persuaded to make a mistake as big as this?

 

Yas Queen!

One of the features of the GDPR which is superficially similar to the old Data Protection Act but turns out to be quite different is the requirement to provide information about how personal data is being used. The word ‘transparency’ is an inherent part of the GDPR first principle, whereas it was absent from the previous version. The DPA 1998 allowed data controllers to decide what information data subjects needed to know, beyond who the controller was and what purposes their data was being processed for. The GDPR has two similar but distinct lists of information that must be provided, one for where data is obtained from the subject, the other where data is obtained from somewhere else, and they dictate what must be provided in scary detail.

When I first started looking at the GDPR, it was this element that I was most sceptical about. I simply couldn’t believe that organisations would admit where they obtained data from, or how long they were going to keep it. I have an almost completed blog on the boil (stay tuned) which is about the very subject of list brokers covering up where they get personal data from and who they sell it to. So when a friend passed me the ‘Data Protection Privacy Notice for Alumni and Supporters‘ from Queen Mary (University of London), I was amazed to see a clear, transparent explanation of what data was used, for what purposes, and under what legal basis. The only problem is that some of it is bollocks, and some of it deploys an attitude to data that requires a seatbelt and a helmet.

Ironically, because it is a relatively short and easy to read document (four pages of A4 in normal font, written in human English), the nonsense leaps out at you like a chucked spear in a 1950s 3D movie. The notice asserts that for a list of purposes, the University is relying on the legal basis of legitimate interests’. The purposes include:

furthering Queen Mary’s educational and charitable mission (which includes fundraising and securing the support of volunteers

This is, of course, direct marketing. The notice then says:

We may pursue these legitimate interests by contacting you by telephone, email, post, text or social media.

Which would be a PECR breach. The University cannot send emails or texts to alumni without consent, but according to the policy, they can. Of course, some clever person (I have a list of names here) will come along and tell me that since students pay for their education, surely the University can rely on the soft opt-in? Well, for one thing, these are alumni, some of whom may have attended the University decades ago (and Queen Mary freely admits to tracking down ex-students using the Royal Mail’s Change of Address Service). For anyone who didn’t substantially pay for their degree, it doesn’t fly. Moreover, I’ve trained a lot of universities who were understandably squeamish about the idea that a qualification like a degree can be reduced to a mere commodity, like a dishwasher or a new set of tyres.

And there’s more.

If you are registered with the Telephone Preference Service (TPS) but have provided us with a telephone number, we will assume we have your consent to call you on this number until notified otherwise

No. For Pity’s Sake, No. Have the last three years of the world and his dog banging on incessantly about consent (often insisting wrongly that you always need it but OK) been for nothing? There is no such thing as assumed consent. There is no such thing as assumed consent. MATE, ARE YOU HAVING A LAUGH?

It seems odd that because Queen Mary have done something really well, I’m criticising them. To be clear, it’s one of the clearest privacy notices I have ever seen. But it’s not just the unlawful bits that stick out like Madonna’s bra (happy 60th, Your Majesty). The rest of it is, to use my favourite euphemism for this kind of thing, is bold. Students’ personal data will be retained “in perpetuity“. The data held about alumni includes “occupation, professional activities and other life achievements“, “family and spouse / partner details and your relationships with other alumni, supporters and friends” and also “financial information relating to you and your family, including data and estimations around your income, assets and potential capacity to make a gift“. If anyone from Queen Mary is reading this, my friend says not to get your hopes up.

The gleeful description of what data they hold is an amuse bouche to the relish with which Queen Mary describe their use of research. The fundraiser Stephen Pidgeon once told me with great vehemence that fundraisers  couldn’t possibly be frank about the techniques that they deploy. Queen Mary, on the other hand, have more or less had shirts made: “we may gather information about you from trusted publicly available sources to help us understand more about you as an individual and your ability to support the university in ways financial or otherwise“. They explicitly say that they do wealth screening in some cases, and have a long list of possible data sources including Companies House, company websites, “rich lists“, Factiva, Lexis Nexis, “general internet and press searches“, Who’s Who, Debretts People of Today and LinkedIn.

Because I banged on about it so loudly a year or so ago, I should be the first to point out that despite all the bollocks talked about the ICO banning wealth screening, the ICO’s enforcement against charities did not such thing: it fined a number of high-profile charities for doing wealth screening without fair processing. Ostensibly, Queen Mary are simply doing what the ICO demanded by describing the process, but I have a sneaking suspicion that some of Our Friends in Wilmslow might be surprised to see wealth screening being carried out so enthusiastically.

To be frank, I do not believe that Queen Mary can justify processing the personal data of the spouses or family members of alumni in any circumstances, unless with consent. I think it is unfair, they do not have a legitimate interest in processing the data, and it is excessive. I think they and any institution who did the same deserve to be enforced against, or at the very least they should receive a shedload of Right to Be Forgotten Requests from mischievous family members. I am also sceptical about the depth of research that may be carried out into some alumni – it’s clear that it will only be a subset of the whole, but unless we’re talking about a handful of millionaires who might well expect this kind of thing to go on, I think this document is an inadequate way to meet the requirements of transparency. If a university is digging into a person’s background to this extent, it’s a form of processing that a person should directly know about and have a right to prevent. My friend only read this document because she’s in the business – Queen Mary should tell people if they’re subject to this level of profiling.

I know some fundraising consultants who will take issue with this and to be clear, I am not dogmatically saying that QM can’t do this. But seriously, can they do this? Is this what the brave new world of GDPR is all about? My instinct is HELL NO WITH AN AIRHORN FOR EMPHASIS but it would be hilarious if I was wrong, and the GDPR really doesn’t dent this kind of activity. I write this solely to see what other people think. Do you think this kind of thing is OK?

I don’t have a dynamite conclusion to this blog. I could kiss the person who wrote this privacy notice because it’s so plain and well-written, and yet the approach to consent and PECR is so misbegotten, I think whoever came up with it should be cast out into the Cursed Earth without a backwards glance. I don’t believe that Queen Mary can possibly justify the amount of data that they propose to process and the purposes for which they think legitimate interests is an adequate umbrella. But at the same time, the ICO looked at precisely this kind of activity and only really complained about the lack of transparency, which isn’t a problem here. All I can say for certain is that other people are going to get the fundamentals so enthusiastically arse-about-face, and do such interesting things, I demand that they do so with the same clarity.

 

A SMALL ADVERT – if you’d like to know more about this kind of thing, I’m running courses in September and November on GDPR, marketing, how to be a DPO and other big DP issues. Some of the September courses are already full, so book now: https://2040training.co.uk/gdprcourses/

 

Live and Let Dai

To say that anything connected with GDPR is the worst example of its kind is a foolhardy business. I’ve read so many terrible articles, LinkedIn posts and Tweets about GDPR, to single any one of them out and say ‘THIS ONE IS THE WORST’ seems pointless. Most of them are bad. However, after watching 33 minutes of waffle, padding and gleefully misinformed bullshit, I am reckless enough to say that the intellectual property lawyer Dai Davis’ talk here is the worst presentation or talk I have seen about the GDPR in any format.

Admittedly, the trainer in me hated it because of the incompetence – Davis has to keep going back to the podium to change slides because he hasn’t brought a remote, and he pads the talk out with protracted questions to the audience that don’t add anything to what he is saying. When someone intelligent-sounding in the audience takes him on by asking a proper question, he runs a mile.

More seriously, a good chunk of the talk is taken up with an attempt to create a formula for how much you should spend on data protection compliance based on the likelihood of being fined. It’s an eye-catching and controversial thing to throw out in a conference, but I don’t believe even Davis knows what point he’s making. Is he really saying that a every organisation should spend a meaningless, averaged-out €2000 to comply with GDPR, or is that just a flourish? Every organisation is different to another, and will have radically different priorities and appetites for risk, so trying to create a standardised methodology is so random and unhelpful, I don’t think it’s a serious point.  Given the number of basic mistakes and baseless assertions he makes in such a short time, however, the only thing I can add to his calculations is that however much you spend on GDPR, you should probably not spend it on advice from him.

I may not have got them all, but here is as full a collection of all the blunders as I could manage:

  • Davis cannot remember how many deputies the Commissioner has, but he knows that it’s between 11 and 13. There are 3 deputies (James Dipple-Johnstone, Paul Arnold and Steve Wood); there have never been more than 3.
  • Davis consistently gets the name of the ICO wrong – it’s almost always the ‘Information Commission Office’, although he varies it at least once with ‘Information Commission Data Protection Officer’ (he wasn’t talking about their DPO). To be charitable, it might be because he’s talking quickly, but the errors are relentless. He clearly thinks that Elizabeth Denham’s job title is ‘ICO’. because he calls her this repeatedly, and talks about what he would do if he was “the ICO“.
  • He asserts that the GDPR is not a ‘step change’ from the old legislation solely because it has lots of words, even though many of those words are very similar to words in the same order in the old version
  • He notes that there has not been a GDPR fine yet. Davis was speaking on May 30th, two days after the first 72 hours to *report* a relevant breach would have elapsed.
  • He asserts several times that in theory “every single breach” has to be reported to the ICO. This is completely false. There is a specific definition of a breach in the GDPR and incidents that do not meet a certain threshold of risk do not have to be reported.
  • He says that telecoms companies had to report breaches to the ICO since 2012. Communications providers have had this duty since 2011, not just telecoms companies.
  • Davis claims that public sector bodies self-report breaches to the ICO because they have no idea about how to take a commercial risk. There is the problem that public sector bodies are not commercial organisations by and large, so that argument makes no sense, but it’s also factually incorrect. To take one example, NHS bodies (the example shouted out by an audience member) have been obliged by the operation of the Information Governance Toolkit to report breaches to the ICO since at least 1st June 2013 (I think it was actually earlier than this, but that’s the one given in a Toolkit document that Davis could have found with a single Google search if facts were something he had any curiosity about).
  • Davis claims that the ICO is not really responsible for prosecutions for S55 offences, despite talking exclusively about prosecutions that the ICO carried out.
  • He includes the prosecutions in his calculations for the risk of being fined by the ICO, seemingly unaware that fines and prosecutions are two entirely distinct activities, with S55 prosecutions being against individuals rather than organisations. Throughout, Davis talks about the ICO enforcing on ‘people’, so I don’t know if he knows that the penalties were issued against data controllers.
  • He says that there were 18000 complaints in 2016 and the ICO has done nothing about nearly all of them. As someone who thinks the ICO is crap, even I have to acknowledge that most of these complaints were resolved informally and the absence of a fine does not mean that nothing happened. In quite a few cases, the complaint would not have been valid, and so no action would be appropriate.
  • He twice says that the maximum penalty for a breach under the DPA 1998 was £5,000,000; it was £500,000.
  • He quotes the head of the ICO’s ‘Breach Notification Division’, which does not exist.
  • He claims that the GDPR contains more loopholes that requires the ICO to hire criminal lawyers. The standard of evidence for a GDPR breach is balance of probabilities, and GDPR removes the requirement to prove damage or distress for a monetary penalty.
  • He says the ICO has 700 staff – they haven’t recruited these staff yet.
  • He tells a story of how he tells his hotel clients (who, if they exist, have my pity) that they cannot claim to be GDPR compliant because they use “mobile telephones” and allow their staff to send text messages. According to Davis, it is impossible to use mobile phones securely.

At the point where Davis says “smart lawyers like me“, my jaw did not drop, it fell off.

Leaving aside how garbled and smug Davis’ performance is, you might wish to charitable and take on his central thesis – that you probably won’t get a GDPR fine. He’s right. There have been relatively few penalties under Data Protection thus far and so the risk of getting one is relatively small. I cannot disagree with this banal point because I have made it myself any times. However, I can’t tell if his conclusion is simply that nobody should bother complying or whether there would have been a ‘however, you should comply because…’ moment, because there isn’t a conclusion. Presumably because he has run out of time, Davis just stops. So what, Dai? What’s your point? What should the audience do with this information? Should they just ignore GDPR?  There’s definitely a sense of this when he says that 10 years from now, the owner of a B&B will not know what GDPR is.

If Davis had the guts or the discipline to get to a conclusion that GDPR doesn’t matter, that would have been something. His contempt for detail would still be an impediment, but ‘Ignore GDPR’ is an assertion worth tackling. I could counter by arguing that the threat of a fine isn’t a good reason to comply, but respecting human dignity and avoiding harm to real people though inaccuracy, intrusion and insecurity is, but Davis never stops circling the airport, so I don’t even know if that’s what he’s saying.

If his contention that organisations don’t have the ability to measure risk effectively and need to get GDPR in perspective, that’s actually a good point, but he makes it so incompetently that again I’m not motivated to take him on. I have grudging sympathy for the idea that reputational damage is an overhyped risk (again, it’s not a point he makes clearly), but I know that many in the Data Protection world would passionately disagree, and I suspect that they could use Facebook’s current woes as evidence that public perception over data misuse isn’t something that boardrooms can ignore.

In the end, I think Davis is a clever man pontificating about a subject he neither cares for or understands, but the danger is that people will watch the talk and be contaminated by it. You could argue that I am making it worse by drawing attention to it solely so I can take the piss. All I can say is, the talk is out there. People will see it. As this is the case, if you find his argument (such as it is) attractive, it’s worth pointing out how sloppy and ill-informed his thinking is. It’s worth asking if this is the ‘Ignore GDPR’ guy, why would you listen to him?

Cop out

On May 3rd 2018, Elizabeth Denham appeared on Channel 4 News as part of her long running commitment to generating headlines. Denham’s track record on the programme is not great – it was on the same programme in March that she adopted the interesting tactic (uniquely, as far as I can see) of informing an organisation in public and in advance that she planned to apply for a warrant to raid them, losing what might be a useful element of surprise in order to look tough in front of Jon Snow.

In the more recent interview, the Commissioner claimed that she had the power to fine directors and had done so. I made an FOI request about this, and the ICO admitted that “we do not have the power to directly fine directors“, directly contradicting what Denham said. You can tell me that ICO has the power to go after directors in limited circumstances that can result in a court issuing a fine and that must be what she meant (ICO did) but that’s not good enough. The DP regulator went on the telly and claimed to have a power she doesn’t have – it’s surely part of Denham’s job to increase understanding of Data Protection, not to muddy the waters.

In the same interview, Denham cheerily announced that she saw herself as a Sheriff of the internet. Arguably, she should be a Mountie but let’s leave that to one side. I assumed that the statement was a throwaway, not a serious statement of how Denham sees herself and her office. I was wrong. There’s a pattern. In a fawning profile by the Observer’s Carole Cadwalladr a few weeks ago, the Commissioner delivered a soundbite that I suspect is intended to epitomise the Denham Era: “Data crimes are real crimes“. And in the recently leaked DCMS Committee report into Fake News, she was at it again:

For the public, we need to be able to understand why an individual sees a certain ad. Why does an individual see a message in their newsfeed that somebody else does not see? We are really the data cops here. We are doing a data audit to be able to understand and to pull back the curtain on the advertising model around political campaigning and election

I think the misleading impression being created here could attract the label ‘fake news’ just as much as any of the internet nonsense Denham and her fanbase are supposedly against. Data crimes are usually not real crimes, and in most cases, the ICO are not the cops. The GDPR doesn’t make anything a criminal offence, and the offences under the Data Protection Act 2018, like those in its predecessor the 1998 Act, are specific. It’s a criminal offence to take, procure or sell personal data without the permission of the data controller; it’s an offence to re-identify depersonalised data (in circumstances so tightly defined I doubt there will be a successful prosecution), and it can be an offence to oblige someone to make a subject access request. Admittedly, the DPA 2018 is stricter in this area – offences under the DPA 1998 were not recordable so you wouldn’t get a criminal record if you committed them, a position that is sensibly reversed in the new version.

However, in some circumstances, the DPA 2018 is less oriented towards offences than the  DPA 1998. A breach of an Enforcement or Information Notice is no longer subject to prosecution, being punishable by a penalty instead. That might result in stricter punishments, but that depends on Wilmslow showing a willingness to use the powers, and in any case, it’s not a criminal sanction. The much-vaunted criminal prosecution of SCL by the Commissioner over David Carroll’s subject access request is doomed in my opinion, but if it goes ahead, it will almost certainly be the last prosecution for a breach of a notice. None of the DP offences are punishable with prison, and for all Denham’s bluster about being a data cop, she never publicly applies the pressure for custodial sentences. For all his faults, her predecessor Christopher Graham never missed an opportunity to do so.

If Facebook willingly shared its customers personal data with Cambridge Analytica, it would not be a criminal offence. If they reused their customers’ data and sold it to list brokers, it would not be a criminal offence. As drafted, the ‘victim’ of most data protection offences would be the data controller, not the person whose data is misappropriated, sold or misused. Denham wants to conjure up images of cops and robbers, but she’s misleading the public. Who knows, maybe she doesn’t want people to realise that the only sanction for the majority of data transgressions are monetary penalty that she has the power to approve. Maybe she means ‘data crimes should be real crimes‘, but if that’s the case, that what she should say instead of giving the wrong impression.

There’s another problem. By setting herself up as the Internet Sheriff, Denham is creating expectations I don’t believe she’s prepared to meet. In all her public appearances, the Commissioner is clearly trying to mark out the internet and new technology as her manor. Supporters like Cadwalladr are only too happy to play along. The Observer piece contains a brief but devastating verdict on thirty or so years of ICO work and four previous Commissioners: “a somewhat dusty regulator dealing in a niche topic“. I’m the last person to defend the ICO, but this writes off Wilmslow’s endeavours on phone hacking, union blacklisting, the lost HMRC data disks and many DP and PECR fines which even I can’t deny have changed behaviour for the better in many sectors. I can’t say that Denham endorses this trashing of her predecessors’ efforts, but she hasn’t repudiated it either. What must her staff think of it?

Strip away the recent headlines for prosecutions and £500,000 fines that haven’t actually happened yet, and Denham’s record is hardly the Data Protection equivalent of Wyatt Earp taking on the Clantons. When dealing with the misuse of 1.6 million people’s data by the Royal Free Hospital and the AI company owned by Google (exactly the kind of tech territory we’re supposed to believe she wants to police), Denham’s ICO asked the Royal Free to sign an undertaking. There is no automatic sanction if they go back on it. Faced with multiple instances of charities profiling potential donors in secret (not a million miles away from the kind of surreptitious data gathering that attracts her current ire), Denham’s response was reportedly to cut the originally proposed fines, such that Oxfam was fined just £6000. Late in 2017, Sheriff Denham issued an enforcement notice against the Ministry of Justice over shameful and long-running subject access backlogs that doubtlessly affected many people in desperate legal circumstances. She gave them eight months to comply and sneaked the notice out on the last working day before Christmas without a press release.

You can tell me that the ICO has consistently issued monetary penalties on Denham’s watch but so did Graham, though the double whammy of £400,000 CMPs on both TalkTalk and Carphone Warehouse weigh against my argument to some extent. But beyond those, Denham has done nothing revolutionary or interesting in enforcement. There has been no action on accuracy or retention, and little on the vital first principle beyond the charity cases that were obviously started under Graham.

Outwardly, Denham seems poised and plausible. Fate has dealt her the biggest data protection story in a decade and some overly sympathetic press coverage, so maybe she’s right to milk it and build up her part. There’s no question that she has a higher public profile than any of the Commissioners who have gone before her, and I know a lot of people in the DP world who think that this is automatically a good thing. I’m not convinced. I think ‘data crimes are real crimes’ could become as unhelpful a distraction as the pervasive ‘GDPR = consent’ myth, and nothing about the past two years convinces me that Denham really has what it takes to round up the internet’s outlaws. As always, I will delighted to be proved wrong; some eyecatching monster scalps is what I have spent years of blogging asking for, and it will make my job easier for the next few years. But unless she really pulls out the big guns, the Commissioner’s legacy may be less Gunfight at the IT Corral, and more Denham’s Last Stand.