Certifiable

The slow progress of GDPR has been agonising. From the beginning, with a series of disputed drafts bouncing around European institutions, we’ve had the fraught last minute negotiations in December 2015, the clouds of doubt cast by the Brexit vote, and finally, through a series of government announcements, apparent confirmation that it was still on track. We’re not there yet – the much-discussed position paper released by the Department for Culture Media and Sport this week is still just the hors d’oeuvres, with the full meal only beginning next month, when the Data Protection Bill itself will be published.

Throughout this seemingly endless grind, there has been one consistent thread, one thing on which the weary GDPR traveller could rely, no matter how much doubt there was elsewhere: the constant stream of bullshit. Everywhere you look, on whatever subject you choose to read about, bullshit everywhere. There is the nonsense about having to have consent, spread by parties as varied as the admirable Rights Info (since corrected) and the GDPR Conference, who sponsored an article about the oncoming Data Protection Apocalypse and then had to withdraw it because it was bollocks. There is the relentless scaremongering about fines that will turn companies into dust, spread by the world and his dog and finally punctured by the Information Commissioner herself, admitting that she would far rather not fine anyone if that’s all the same to you. I’m not certain that waving the white flag this early is the masterstroke that Wilmslow thinks it is, but at least they’ve finally caught up to where I was in April.

Hype is one thing. If I was still a Data Protection Officer, up until today I probably would have shamelessly exploited the bazillion pound fine nonsense if I thought it would persuade my employer to take the changes seriously. Being a DPO is the ultimate thankless task where nobody notices you until somebody else does something stupid and you get the blame, so if the threat of fire and fury gets the chief executive’s attention, it’s nobody else’s business. However, there’s a difference between selling internally, and just plain selling.

As has already been noted by experts more distinguished and less biased than me, there are a lot of new entrants into the market whose experience lies outside the conventional route of Actually Working On Data Protection Ever. This does not stop them from making grand claims. The idea that Carl Gottlieb’s customers already call him ‘The GDPR Guy’ definitely doesn’t sound made up, but it must be confusing for all the people who presumably called him the Anti Virus Guy a few months ago.

If you prefer, perhaps you might try Get Data Protected Reliably Ltd, whose website boldly describes it as “the UK’s leading GDPR Consultancy“, which for a company that was only incorporated three weeks ago is quite an achievement. The owner confirmed to me that he doesn’t have any Data Protection experience, but he is in the process of hiring people who do, so that’s something to look forward to.

You could try GDPR Training (established 25th April, so more than double the experience of Get Data Protected Reliably), and run by the husband and wife team of Emma Green (former IT consultant) and John Green (former Legal Costs Draftsman). The Greens were upset about the fact that people tweeted facts that were in the public domain about them and made some threats about libel, which is odd given that John accused a highly respected DP expert of jumping on the GDPR bandwagon before blocking everyone on Twitter who noticed. Given that they use the same P.O. Box in Wilmslow that I do, at least they won’t have to go far if they want to take issue with this blog.

More pernicious is the sudden rise of the GDPR Certified Practitioner / DPO / Professional. Now here, I have to declare an interest. One of the training courses I run is a four day course with an exam and a project at the end. If you pass both elements of the course, you get a certificate. It’s a practical course designed to get people ready for GDPR (its predecessor did the same for the DPA). Nobody is ‘qualified’ to be a GDPR Data Protection Officer because they complete the course – no course can qualify you for a job that doesn’t really exist yet. Nobody who completes it is ‘GDPR certified’ as a result, because certification in the GDPR context has a very specific meaning that makes such a claim impossible.

To be certified under the GDPR, data processing has to be approved by an accredited certification body. To be an accredited certification body, an organisation has to be approved by the appropriate national body – in the UK, DCMS has announced that the Information Commissioner’s Office and the UK Accreditation Service will carry out this role, but they aren’t doing it yet. Given that Article 42 refers to the certification of “processing operations by controllers and processors“, the mechanism for certifying a product like a training course is unclear. The other important element here is that certification is voluntary. The elements of GDPR that certification applies to do not require it – the organisation is at liberty to find other ways to prove their compliance, which is what many will do.

A GDPR certification may be very useful – a controller or processor can use certification to demonstrate their compliance (a requirement of Article 24), and can also have their DP by design approach certified. It’s obviously appealing to data processors or controllers who are bidding to provide services – the certified cloud provider will undoubtedly be more attractive than the one who is not. But whether many Data Controllers will take it up is an open question – whether a company is certified will make zero difference to consumers.

And we’re not there now, which is why claims about being a ‘Certified’ DPO should be taken with a big pinch of salt. If you say you’re certified, that claim should be very carefully interrogated. If, for example, you mean ‘I have successfully completed an course with an exam and I got a certificate at the end of it’, fair enough. But is that what most people will think when they see you describe yourself as a ‘Certified DPO Practitioner‘? Will anyone think you’ve just been on a training course (however good that course might be), especially if your company website says the following:

  • GDPR Practitioners – As certified practitioners we can assist you through the new data law minefield.
  • Data Protection Officers – We are qualified to act as outsourced DPOs to consult on data protection issues.

In the GDPR world, ‘certified’ is a big word; ‘certificated’ is a much more accurate one, but it doesn’t have the same heft. The question is, why not use the right word? All of these courses – including mine – are certificated – there’s a test at the end, and you get a certificate. Claiming to be ‘GDPR certified’ sounds like a process that hasn’t started yet.

Some training companies do have external accreditation of their courses, so when they say that they are offering a “Certified EU General Data Protection Regulation (GDPR) Training Course”, surely that is worth more? IT Governance, for example, offer a range of Certified GDPR courses that have been accredited by the International Board for IT Governance Qualifications, which is obviously different because the IBITGQ is an external body whose training and examination committees are staffed by “industry experts”. The IBITGQ currently only accredits one organisation (IT Governance) and though they are open to accrediting other organisations, they refuse to take anyone else from the United Kingdom.

The names of the ‘industry experts’ aren’t available on the IBITGQ website, so I asked IT Governance who the “industry experts” on the IBITGQ committees were, but they refused to tell me and told me to ask the IBITGQ itself. I asked them, but they didn’t acknowledge my email. Meanwhile, people who have been the IT Governance courses are describing themselves as ‘GDPR Certified Practitioners’, and I’m not sure what that means. The IBITGQ may be doing a sterling job, but the accreditation they offer to a single training company has nothing to do with GDPR certification. They are not accredited in the UK to offer GDPR certification, because no-one is.

I’m not saying that IT Governance want to create any confusion, I don’t know anyone who has actually done the course, and I have no idea what it is like. Nevertheless, no-one should be using the word ‘Certified’ in a GDPR context until the certification process actually starts. It is impossible to have a GDPR certification at the moment, and anyone who has completed or delivered any kind of training on the subject knows this better than most.

The idea of a GDPR seal (also encouraged in Article 42) will be revolutionary in the training business – once courses or organisations can have a GDPR kite mark, it will be difficult to trade without one. I don’t know whether to look forward to the dawn of the DP seal or not, but it’s coming and I will have to get used to it. In the meantime, it’s important that everyone who is buying training or consultancy looks at the bona fides of the provider. Anyone with ‘GDPR’ in their name probably doesn’t have a long history of Data Protection experience, and given that GDPR is evolutionary not revolutionary, that’s a problem. Anyone with a predominantly IT security background is an expert in one part of the GDPR, not the whole of it. And anyone who describes themselves as ‘Certified’ should be asked plainly and simply: beyond getting a certificate, what does that mean?

Advertising standards

This week, the great and the good and some other people descend on Cambridge for the 30th Annual Privacy Laws and Business’ three day Data Protection Conference in Cambridge. It’s a big event, with Data Protection regulators, practitioners and a large collective noun of DP lawyers all milling around St John’s College listening to each other talk. I’ve only been once – no employer I’ve ever worked for wanted to pay, so I ended up pitching PLB a talk about crap Data Protection stories so I could get in for nothing. The cheapest possible ticket is a one day option for charities and the public sector at £437.50 +VAT; for 3 days, that goes up to £1242.50 + VAT, while someone working for a company with more than 500 employees will pay £1775 + VAT, plus more for accommodation or the optional Sunday night dinner. The college bars have extended opening hours in case you have more money to burn.

As PLB’s amusingly vulgar marketing makes clear, this is no dry academic event. For attendees with the requisite funds, the conference is an opportunity to ‘take your place at the privacy top table‘ and enjoy ‘Privileged Access‘ to the various Data Protection regulators in attendance. Emails from PLB promise that DP Authorities such as Helen Dixon from Ireland, Isabelle Falque-Pierrotin from France and our very own Elizabeth Denham will be available for ‘priceless informal one-to-one discussions’ and will be ‘pleased to engage you in discussion‘. Imagine that.

The UK’s Information Commissioner is being particularly accommodating this year. As well as being listed on the conference website as a ‘Supporter’ of this commercial event, the Commissioner herself is giving a talk on Tuesday and chairing another session while no fewer than five ICO staff members will be in attendance (a fact advertised by PLB in the ‘top table’ email). Perhaps most generously of all, Mrs Denham is the star of an advert for the conference, happily plugging the relaxed atmosphere and expert PLB staff while exhorting viewers to attend. And this is where I have a problem.

There’s nothing wrong with the ICO appearing at commercial events like this – big conferences are a legitimate way to make the organisation more visible and get messages out. It’s very different if the ICO is endorsing the event in question. The PLB conference is not a charity or public sector event – it is a commercial conference run for profit. The ICO’s speaking engagement policy says explicitly that ICO officers should avoid accepting invitations where ‘our attendance can be interpreted as ICO endorsement of a commercial organisation over those of competitors‘, and yet Denham has gone further than that, by actively promoting the conference and the expertise of PLB’s staff. The same policy states that the ICO logo must not be displayed when labelled as a ‘supporter’ – which is exactly what PLB are doing with the logo on their website.

I made an FOI request to the ICO about Denham’s appearance in the advert, asking for emails and other correspondence about why she agreed to do it. In the initial response, there was no evidence of an invitation, only emails arranging the filming itself. When I queried this, I was told that the original request was made and agreed to verbally last October, and while there may have been some follow-ups by email shortly thereafter, they will have been deleted because the ICO deletes all emails from everyone’s inbox after six months. So Denham, who famously burnishes her records management credentials, didn’t think it was worth keeping a record of why she had decided to endorse a commercial event, despite breaching her own speaking engagement policy and code of conduct by doing so.

The correspondence I did get was nevertheless illuminating. When I made my request, I used the word ‘advert’ because PLB were describing it as a ‘conference video’ and I wanted to underline what it really was. However, the word ‘advert’ is used routinely by ICO staff in their emails – there is no question that Denham and her staff perceived it as being something else. The content of Denham’s turn came directly from Stewart Dresner, PLB’s Chief Executive. Even specific phrases that she uses (the sickly ‘summer school‘ for example, at which she at least has the decency to laugh while saying) come direct from one of his emails to her. After it was filmed, Denham was keen to check that Dresner thought the video was OK, and he replied with a sentence that should have pulled everyone up short: “I greatly appreciate you taking this step and so effectively endorsing several important features of our conference” (my emphasis). The ICO is an independent regulator; endorsing commercial products or events should be beyond the pale. The ICO’s code of conduct is obviously based on the Civil Service Code, but they have adapted it in a key passage. The Civil Service Code says that officers should not use information they have obtained in the course of their work to favour others, but the ICO goes further:

You should not misuse your official position, or information acquired during the course of your duties, to further your private interests or those of others

If you are a member of the senior management team, or a member of staff who is either working on a contract or dealing with issues which could raise matters of substance, you should ensure that any possible conflicts of interest are identified at an early stage and that appropriate action is taken to resolve them.

 

Senior officers like Robert Parker, the ICO’s head of communications, and Steve Wood, recently appointed Deputy Commissioner after Rob Luke’s mysterious cameo appearance, were involved throughout this correspondence. Even if Denham didn’t think an endorsement could be problematic, her staff should have intervened. Most of the ICO’s senior management were at least copied into the emails I’ve received, and none of them identified a problem in the Commissioner personally endorsing a commercial event in breach of her own policies. There is a telling moment in the correspondence where Dresner complains that PLB were not aware of Denham giving evidence to Parliament. Dresner’s expectation is that PLB will be tipped off about such appearances: “we do suggest that you distinguish between your mass media list, who would receive some media releases, and your specialist media list, who would receive all of them“. It’s clear that Dresner expects special treatment – and why wouldn’t he? The Commissioner herself is advertising his conference.

Nobody at the ICO would ever recommend anything that I did or was involved in because I write stuff like this, so you might think this is all just sour grapes. Given that I don’t think the ICO is an effective regulator, I couldn’t seek their approval even if they would give it but in any case, I don’t want Wilmslow’s endorsement. If I have anything going for me as a itinerant jobbing consultant, it’s that I am independent and I encourage the people I deal with to think and act independently. What’s distasteful about this episode is that the Commissioner, for whom independence isn’t a bonus but a necessity, doesn’t seem to act in the same way. Using the regulator’s name to flog conference places should be inconceivable, and yet this is what Denham has done. However prestigious or expert they may appear, the Information Commissioner should not personally or corporately recommend or endorse commercial products and organisations. This shouldn’t have happened, and it must not happen again.

Analyse This

With no small amount of fanfare, the Information Commissioner Elizabeth Denham recently announced a “formal” investigation into the use of data analytics for political purposes. The use of targeted ads in political campaigns – especially those where the Right triumphed – has been much in the headlines, and the ICO clearly feels the need to react. Denham blogged on her website: “this investigation is a high priority for my office in our work to uphold the rights of individuals and ensure that political campaigners and companies providing services to political parties operate within UK law.”. The investigation was greeted with enthusiasm – the journalist Carole Cadwalladr who has made a lot of the running over analytics in the Observer was supportive and the Data Protection activist Paul-Olivier Dehaye hailed it as ‘very important’.

Saying that Facebook is probably abusing privacy rights (and acting as a conduit for the abuse of privacy rights) is a bit like saying that rain is wet. Some of Cadwalladr’s reports have drawn fascinating (if hotly disputed) links between various right-wing vampires like Nigel Farage, Dominic Cummings and Steve Bannon, and draw interesting (and hotly disputed) links between various Brexit campaigns and the tech firm Cambridge Analytica. Other of her stories are lame; a recent article complained that people Cadwalladr doesn’t approve of are outbidding people she does approve of when buying Facebook ads, which isn’t really news.

Worse than that, another article enthusiastically repeated Stephen Kinnock MP’s calls for an investigation into Tory data use, ignoring the fact that on the same day, Labour was hoovering up emails on its website without a privacy policy (which, like the marketing emails they will inevitably send) is a breach of Data Protection. The article makes the false claim that it is illegal to use data about political opinions without consent. Several people (including the chair of the National Association of Data Protection Officers) pointed this out to Cadwalladr, but the article is uncorrected at the time of writing. If you want to write about political parties and campaigns abusing data protection and privacy and you only acknowledge the dodgy things that one side gets up to, your allegations should not be taken too seriously. Politics is a swamp, and everyone is covered in slime. Given Cadwalladr’s shaky understanding of Data Protection law, it’s not hard to believe that her interest in the topic is mainly motivated by politics, and the ICO needs to be careful not to be sucked in.

It’s odd that allegations made to the ICO about data misuse by Owen Smith and Jeremy Corbyn, or candidates for the UNITE leadership have come to nothing, and yet here we have a formal investigation announced with great flourish into an issue that is largely perceived as affecting the right. I’m left-wing myself, but if Denham is going to take action over the political use of personal data, I expect her to be scrupulously even-handed.

However, I doubt very much whether action on this issue will ever happen. Just after the announcement, I made an FOI request to the Commissioner’s office about the nature of the investigation – how many people were involved and where from, what powers the ICO was using to conduct the investigation, and who the most senior person involved was. What I was trying to find out was simple – is this an investigation likely to lead to guidance or enforcement?

Here is what my FOI revealed (questions in bold, ICO answers below)

1) Under what specific powers is the investigation being carried out?

Initial intelligence gathering would fall under the general duties of the Commissioner to promote good practice (section 51) of the DPA. This may lead to use of investigatory powers and enforcement where necessary, under the provisions set out in Part V of the DPA, as well as the CMP powers at section 55A.  The Commissioner also has powers of entry and inspection under schedule 9 of the DPA.

2) How many members of staff are involved in the investigation?

It’s difficult to give an exact number, the ‘group’ involved will need to be established and documented in terms of reference which will be done shortly. At this stage, from the information we hold, we can say that 16 member of staff have been involved and another 4 members of staff are also expected to be involved as the investigation progresses.

3, 4 and 5-
 
What are the job titles of the staff involved?
What is the name of the most senior person involved in the investigation?
Which department and team do these staff belong to?

Senior Policy Officer – Private Sector Engagement
Group Manager – Private Sector Engagement
Policy Officer – Private Sector Engagement
Lead Communications Officer – Communication Planning
Senior Policy Officer – Public Policy and Parliament
Intelligence and Research Officer – Intelligence Team
Team Manager (Intelligence) – Intelligence Team
Lead Intelligence and research Officer – Intelligence Team
Team Manager – Enforcement (PECR) – Investigations
Group Manager (Public Policy & Parliament) – Public Policy and Parliament
Senior Policy Officer (Public Policy & Parliament) – Public Policy and Parliament
Team Manager (Enforcement Team 2) – Enforcement
Team Manager – Communications – Communications Planning
Head of Corporate Affairs – Communications Planning
Group Manager – Public Sector Engagement – Public Sector Engagement

The most senior person is Steve Wood – Head of International Strategy & Intelligence – International & Intelligence Management

*************************************************************************************

What does this tell us?

The main contributors are Engagement (which is presumably the successor to the old Strategic Liaison department whose chief role was holding hands with stakeholders), and policy (whose main contribution to the debate on big data is this endless and almost unreadable discussion paper). The most senior person involved is Steve Wood, who has an academic background. Of the 16 involved, just two are from Enforcement, outnumbered even by the comms staff. Apologists for Wilmslow will leap on that bit that says “This may lead to use of investigatory powers and enforcement where necessary“, but my response to that is an armpit fart. The ICO is starting from the perspective of promoting good practice run by an academic, which is just about the silliest response to this issue that I can think of.

Some areas that the ICO regulates are prime candidates for guidance. The public sector, charities and regulated industries are likely to be influenced by what the ICO says. Other areas – list broking and compensation claims spring to mind – are immune to policy and guidance, but politics is the best example. Politics is about power – if a party, campaign or individual can take power while breaching DP law, they will. It isn’t that they don’t understand the law, it is that they don’t care. No political party or campaign will be influenced by ICO guidance, and to pretend otherwise is childish. All major political parties (Labour, LibDems, SNP, Tory) have received a PECR Enforcement Notice over automated calls, and yet they flout PECR all the time with emails and yet more calls, as anyone who heard from David Lammy knows only too well. Even when the ICO fined Leave.EU during the referendum, the campaign’s reaction (“Whatever”) could not have been more derisive because they could afford to pay the fine. Either the ICO comes into politics using its powers to the maximum possible extent against everyone (£500,000 penalties, or more useful, enforcement notices that are backed up by prosecution), or they should leave the field.

We already know that the outcome of this investigation will be revealed long after the election is over, when anything that the Commissioner says or does will have no effect on the real world. On the evidence of my FOI, I predict there will be no fines, no enforcement notices, no action. There will be a long, thorough and thoughtful report that nobody in politics will pay attention to, and only people like me will read. The first task of the Supervisory Authority under GDPR is to ‘monitor and enforce’. Long ago, when I worked there, the joke went around the ICO that senior officers operated under the mantra ‘thinking is doing’, as an excuse to avoid taking any action. I don’t care if no senior officer ever actually said this – on big strategic issues, the ICO has always laboured under this approach. Denham’s first big splash was to follow through on charity enforcement when the easy choice was to back down. She deserves praise for that decision. However, If there is an international right-wing conspiracy to hijack democracy across the world, I don’t think a thought symposium is going to save us.

Another fine mess

For those working in Data Protection, there are many interesting things to note about the forthcoming General Data Protection Regulation. There is the clarification of consent, which may send tawdry marketers into a spin. There is the tightening of the rules over criminal records. There is the helpful emphasis on risk. My current favourite thing is a sly anti-establishment streak – here and there, the GDPR returns to the theme of the power imbalance between the data subject and the big public institution, and seeks to even up the score.

For some, however, there is only one thing to talk about. All that matters is the fines. Fines fines fines, all day long. A conference held in London last week was Fine City as far as the tweets were concerned. COMPANIES MIGHT GO BUST, apparently. Meanwhile, the Register breathlessly reheated a press release from cyber security outfit NCC Group, featuring a magical GDPR calculator that claims ICO’s 2016 penalties would have been either £59 million or £69 million under GDPR (the figure is different in the Register’s headline and story, and I can’t be bothered to find the original because it’s all bullshit).

This is my prediction. There will never be a maximum GDPR penalty in the UK. Nobody will ever be fined €20 million (however we calculate it in diminishing Brexit Pounds), or 4% of annual turnover. There will be a mild swelling in the amount of fines, but the dizzy heights so beloved of the phalanx of new GDPR experts (TRANSLATION: people in shiny suits who were in sales and IT in 2015) will never be scaled. It’s a nonsense myth from people with kit to sell. I have something to sell, friends, and I’m not going to sell it like this.

I have no quibble with DP officers and IG managers hurling a blood-curdling depiction of the penalties at senior management when they’re trying to get more / some resources to deal with the GDPR onslaught – I would have done it. There is probably a proper term for the mistake NCC made with their calculation, but I’m calling it the Forgetting The ICO Has To Do It Syndrome. NCC say Pharmacy2U’s penalty would inflate from £130,000 to £4.4 million, ignoring the fact that the decision would not be made by a robot. Pharmacy2U flogged the data of elderly and vulnerable people to dodgy health supplement merchants, and ICO *only* fined them £130,000, despite having a maximum of £500,000. Of course, some penalties have caused genuine pain for cash-strapped public authorities, but when NCC say that their adjusted-for-GDPR Pharmacy2U fine represented “a significant proportion of its revenues and potentially enough to put it out of business“, they’re not adjusting their hot air for reality.

Take the example of a monetary penalty issued by the ICO in March against a barrister. The barrister was involved in proceedings at the Family Court and the Court of Protection, so her files contained sensitive information about children and vulnerable adults. Despite guidance issued by the Law Society in 2013, they were stored unencrypted on her home computer. While upgrading the software on the machine, her husband backed up the files to online storage. Some of the files were indexed by search engines, and were subsequently found by a local authority lawyer.

The ICO fined the barrister £1000, reduced to £800 if they paid on time. I don’t think all barristers are loaded, but most could pay a penalty of £800 without going bankrupt. £800 isn’t remotely enough for a breach as basic and avoidable as this. The aggravating factors are everywhere – the Law Society guidance, the lack of encryption, the fact that the husband had access to the data. If the ICO was capable of issuing a £4.4 million penalty, they’d fine a barrister more than £800 for this mess. And what’s worse, they redacted the barrister’s name from the notice. The ICO offered no explanation for this, so I made an FOI request for the barrister’s name and for information about why the name was redacted.

They refused to give me the name, but disclosed internal correspondence about their decision to redact. There is a lot in the response to be concerned about. For one thing, in refusing to give me the name, the ICO contradicts its own penalty notice. The notice describes an ongoing contravention from 2013 (when the Law Society guidance was issued) to 2016 (when the data was discovered). Nevertheless, the FOI response states that “this data breach was considered a one off error“, and a reference to this characterisation is also made in the notes they disclosed to me.

If it was a one-off error, ICO couldn’t have issued the penalty, because they don’t have the power to fine people for incidents, only for breaches (in this case, the absence of appropriate technical and organisation security measures required by the Seventh Data Protection principle). Given that the notice states explicitly that the breach lasted for years, the ICO’s response isn’t true. It’s bad enough that the ICO is still mixing up incidents and breaches four years after this confusion lost them the Scottish Borders Tribunal appeal, it’s even worse that they seem not to understand the point of fining Data Controllers.

In the notes disclosed to me about the decision to redact the notice, ICO officials discuss the “negative impact” of the fine on the barrister, especially as she is a “professional person who is completely reliant on referrals from external clients“. Despite the Head of Enforcement putting a succinct and pragmatic case for disclosure: “it is easier to explain why we did (proportionate, deterrent effect) rather than why we didn’t“, he is unfortunately persuaded that the most important thing is to “avoid any damage to reputation”. Bizarrely, one person claimed that they could “get the deterrent message across” despite not naming the barrister.

The GDPR requires that fines be “effective, proportionate and dissuasive” – an anonymous £800 fine fails on each point. Anyone who takes their professional obligations seriously needs no horror stories to persuade them. For those who do not, an effective, proportionate and dissuasive penalty is either a stinging fine or naming and shaming. The ICO had no appetite for either option, and effectively let the barrister get away with it. They valued her professional reputation above the privacy of people whose data she put at risk, and future clients who will innocently give their confidential and private information to someone with this shoddy track record.

If the NCC Group, and all the various vendors and GDPR carpetbaggers are to be believed, within a year, the UK will operate under a regime of colossal, multi-million pound fines that will bring errant businesses to their knees. In reality, the ICO cut the fines on charities by 90% to avoid upsetting donors, and rendered their enforcement against an irresponsible data controller pointless for fear of putting her out of business.

These two pictures cannot be reconciled. It is entirely possible for the ICO to put someone out of business – indeed, many recipients of their PECR penalties are forced into liquidation (this may be a ploy to avoid the fines, but nevertheless, the businesses close). But the majority of PECR penalties are issued against businesses operating on the very fringe of legality – they are not mainstream data controllers. They are not nice, professional barristers. They are not the audience for the Great GDPR Fine Hysteria. If the ICO cannot stomach the risk of putting a single barrister out of business pour encourager les autres, it is disingenuous to pretend that they will rain down fire on mainstream data controllers after May 2018. We’ll get more of the same – cautious, reactive, distracted by the incident, and unwilling to take aim at hard targets. Plus ça change.

BETTER LATE THAN NEVER

Last September, I was on holiday in Greece, full of the joys of ancient architecture, sunshine and Greek food. I decided that having spent too much of my time having a pop at charities and fundraisers and the Institute of Fundraising, I would do that thing that people always tell negative smart-arses like me to do. WHY DON’T YOU DO SOMETHING HELPFUL INSTEAD OF SNIPING FROM THE SIDELINES. I decided that they had a point.

I decided to write a clear, plain English guide to fundraising and charities based largely on the first data protection principle, setting out what Data Protection really requires from Data Protection. I wrote a blog asking for questions that charities and fundraisers really wanted the answers to, planning to write the guide over Christmas and publish it in January. Initially, I had lofty ideas for something interactive, but it came to nothing, so a guide to DP and fundraising was the aim.

Friends, things did not go to plan. Instead of writing the guide, my Christmas was dominated by some unexpected visits to hospital, and several encounters where medical professionals cheerfully reassured me that people with my condition often only find out when they have a stroke. Seasons Greetings and all that, Doc, but any sentence that contains the words ‘stroke’ or ‘brain tumour’ isn’t reassuring. The eventual diagnosis was far from serious, but it still exploded any chance I had of doing the guide on time.

By the time things calmed down, it was January, and I was writing my charity guide in fits and starts while doing loads of work around the country. And then every two minutes, someone was arranging a conference or publishing guidance and it seemed I had missed the boat. More than once, I wondered if there was any point in finishing my charity guide when the ICO and the Fundraising Regulator had already weighed in on the subject.

Then I actually read the guidance in question, and I decided that both regulators hadn’t hit the target I was aiming for – a candid, realistic and human guide to the legislation. Moreover, having relentlessly criticised charities and fundraisers, annoying a good many good people in the process, I felt that if I had something useful, something positive to give, I was obliged do so. Therefore, with no great fanfare and with no ambition further that the hope that some people might read it and understand DP better, I am publishing my guide today. If you would like to read it, please click here to get it from the downloads section of my website. You don’t need to register or sign up to anything to download it.

I did intend to say that this would be the last thing I write about charities and fundraising because surely by now I’ve said everything I possibly could and I don’t want this blog to become solely about charities. Then I realised I have Strong Opinions about the Fundraising Preference Service which some fundraisers may even agree with, so I am not going to make that claim. Nevertheless, regular readers of this blog (hello both of you) will be reassured that I intend to spend less time goading the charity sector and more time, well, goading other people.

Thanks for reading.