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.

Catch the Pidgeon

Even before the fundraising sector met its Data Protection nemesis in December, with two charities cruelly hung out on the rack, forbidden ever to raise funds again (CORRECTION: given two of the smallest fines in Data Protection history and not forbidden from doing anything), various blogs, and tweets showed that anguished tin-rattlers were confused about what they were accused of.

A classic of the genre was published just over a week ago by Third Sector, penned by Stephen Pidgeon, a “consultant and teacher” (one assumes modesty prevented the publication from mentioning that until recently he chaired the Institute of Fundraising’s Standards Committee, responsible for the until-recently legally incorrect Code of Fundraising Practice). Pidgeon made a series of assertions in his article, and the most important of them is wrong.

Pidgeon describes profiling as a serendipitous activity – a fundraiser innocently planning some door-drops (not a hint of pestering spam in this charming scenario, nor any resort to a data-mining outfit like Prospecting for Gold) happens to notice that a donor has sold a business, and so decides to add his details to an existing campaign. The scheme is ruined by the ICO who says: “That’s not allowed – it’s against the Data Protection Act without express permission“. As Pidgeon points out, the DPA is much vaguer than that. If the Commissioner had indeed said this, it would be nonsense. The problem is, they didn’t.

Both charity notices set out the ICO’s position on charity profiling – it cannot be secret. The same is true for data sharing and appending new data to records that the subject didn’t provide. Neither notice finds profiling without consent to be a breach. Admittedly, of the Data Protection only offers one other option to justify profiling in these circumstances (legitimate interests), but either Pidgeon doesn’t know what the notice says, or he is deliberately misleading his audience. The word ‘permission’ does not appear in either notice, and the word ‘consent’ isn’t mentioned either.

Pidgeon also asserts that wealth profiling is not confined to charities:

This issue is not confined to charities. Yet, in all the 100-plus ICO adjudications in 2016, I could not find a single commercial firm censured for wealth screening.

To be pedantic, they’re not unenforceable ‘adjudications’, they’re formal legal notices, and if you add up all of the DP and PECR monetary penalty and enforcement notices in 2016, you don’t get to 100. He might be including the undertakings, which could be compared to the blancmange adjudications that charities have grown used to, but they’re irrelevant in a conversation about enforcement. The more important point is that like others, including the fundraising apologist academic Ian McQuillin and the researcher Matt Ide, Pidgeon claims that everyone does wealth screening but only the charities are getting punished for it. The Daily Mail hasn’t exposed Marks and Spencers or Greggs for wealth screening – possibly because they’re good at keeping it secret, but a more likely explanation is that they don’t do it. Until someone in the charity sector shows evidence of another organisation doing secret profiling, it’s just a distraction from the fact that – as Pidgeon claims – most of the charity sector have been doing it unlawfully for years.

Many in the sector also seem persuaded that the ICO action is a weird anti-charity vendetta. MacQuillin’s contributions to the Critical Fundraising Blog pondered the mystifying question of why the data protection regulator has taken action when household name organisations have been exposed for breaching data protection. The ICO takes action for three reasons – an organisation reports itself for something, ICO gets lots of complaints about something, or something makes a big splash in the press. There were thousands of complaints about charity fundraising, but all went to the toothless Fundraising Standards Board, who hardly ever passed them on to ICO. So it was the Daily Mail’s headlines that did the trick – the heartbreaking story of Olive Cooke but more importantly for the ICO’s purposes, the flamboyantly unlawful way in which charities treated Samuel Rae, trading his data relentlessly with anyone who wanted it.

In pursuing his false claim about consent, Pidgeon derisively summarised what charities might have to say to prospective donors: “We want to find out how rich you are; tick here to agree”! As a first draft, this has some merit, but a charity involved in wealth screening should also add ‘We want to know whether you are worth more alive or dead‘. The consent claim is a red herring, but perhaps unwittingly, Pidgeon has hit on the real problem for fundraisers: daylight. The foundation of Data Protection is fairness, and the only way to achieve it, regardless of whether consent is part of the mix, is to tell the subject the purposes for which their data will be used. Stretching the law as far as they can, the ICO has invented the concept of ‘reasonable expectations’. Reasonable expectations doesn’t appear in the Data Protection Act, but the ICO’s idea is that if you are only doing something that the person would expect, you don’t have to spell it out. One might take issue with this because it’s not in the Act, but it’s a sensible idea. The ICO’s emphasis has always been on being transparent over unexpected or objectionable processing.

Tesco’s Clubcard scheme is a useful example. Clubcard is a loyalty scheme, clearly based on profiling. The user knows that when they swipe their card, their purchases are analysed so that tailored offers and vouchers can be provided. Needless to say, Tesco also use the data for their sales and marketing strategy. If you look at the T&Cs for the Clubcard scheme, you will not find references to data sharing with third parties for wealth screening. They don’t need to – they can analyse your purchases instead. The user knows that profiling is inherent to the scheme, and they are not required to participate when shopping at Tesco. I have a Clubcard because I understand the system and I don’t believe that Tesco flogs my data. The profiling is the basis on which the whole thing operates. I have a choice about whether to shop at Tesco, and separately, whether to have a Clubcard when I do.

On the other hand, the RSPCA profiled seven million donors after they donated; presumably the lion’s share of all people who donated to the charity. The RSPCA did not tell people that this was the purpose for which their data will be used, and nobody outside the charity sector was aware of what was happening. Unlike Clubcard, donors could not participate without being screened and analysed by the charity. I have used the wealth-screening example on many of my training courses. The reaction is always surprise, and often revulsion.  Nobody ever leaps to the charity’s defence because secret profiling is a dodgy way to do business.

Pidgeon’s squeamishness about describing the process – the daft example of the story in the newspaper, his emphasis on data being gathered from the public domain – suggests that fundraisers are more ambivalent about their methods than they might like to admit. The existence of five facts in five separate publicly accessible places is different to the combination of those facts in one place, gathered with the intention of tailored marketing. A profile is greater than the sum of its parts, and people should be told that it exists. Pidgeon isn’t alone in his approach – Chris Carnie, the founder of ‘prospect research’ company Factary erroneously characterised myself and others as saying that using public domain data is “an intrusion into an individual’s privacy. That searching for a named individual in Companies House fundamentally affects the rights of that person“. All I said was that such research should be transparent, but this isn’t news that Carnie and his colleagues find palatable. Ide’s company goes as far as to assess the ‘ethical credentials‘ of a donor, which sounds a world away from noticing a story in a paper.

The Daily Mail is a revolting newspaper – the worst combination of small-minded, petty conservatism and curtain-twitching prurience. It is a matter of ongoing annoyance to me that the Mail is one of the very few national news outlets that covers Data Protection issues with any enthusiasm. I really wish the Guardian or the Times had exposed the ghastly exploitation of vulnerable people like Samuel Rae, or their hunger for information about possible donors. I wish Dispatches’ fine work on the shameful state of some fundraising call centres had got more attention. Nevertheless, none of this is the Mail’s fault, and fundraisers’ relentless blame-shifting needs to be called out for the cant that it is. Everyone knows whose fault this is.

The charity and fundraising sector isn’t in a mess over data protection because of the Daily Mail, and it isn’t there because of the Information Commissioner. This problem is the fault of some fundraisers and their agents not obeying the law, and trustees who didn’t ask them enough questions. MacQuillin claims that almost everything that has happened to the fundraising sector over the past two years is because of ‘fake news‘; Olive Cooke’s death wasn’t, her family says, the result of the spam tsunami that charities subjected her to. For one thing, this claim disgracefully ignores Samuel Rae, whose story would have caused the same interest even if it wasn’t the sequel to Olive Cooke. Moreover, it is itself fake news. If some of Pidgeon and MacQuillin’s compadres had done their job with a greater interest in the law, they wouldn’t be here now. This is the second or third time I have written this blog. With 11 more possible fines, and fundraisers still in denial about what they have done, I’ll probably have to write it again before long.

Human Wrongs

A few years ago I went to Strasbourg, home of the famous European Court of Human Rights. After admiring the building itself, I noticed a disabled man camping on the other side of the tracks that take visitors to the tram stop named, rather piously, ‘Droits De L’Homme’. He had a huge display in several languages, setting out the appalling injustice that the Court had dealt him by not upholding his case. There were several such men, who would no doubt have treated a ECHR victory as total vindication, but the loss was evidence only of the Court’s bias and corruption. I immediately thought of the notorious FOI applicant and progenitor of vexatious caselaw Alan Dransfield, and wondered if one day, he would be one of the poor souls, earnestly telling his sorry tale to tourists. This is unlikely of course, because Dransfield would spend his time shouting at every passer-by that they were a dickhead.

Nevertheless, the website ‘Amazon News Media’ chose to celebrate International Human Rights Day last month (10th December, diary fans) by publishing an open letter from Dransfield to the Justice Secretary Elizabeth Truss. Fans of Dransfield’s work will be pleased to see a number of familiar themes in the letter. Dransfield claims that the Information Commissioner’s Office is guilty of fraud and theft of public funds. There is ‘tangible evidence‘ that they, along with multiple public authorities, are involved in a conspiracy to pervert the course of justice:

The evidence of complicity between the ICO and Public Authorities seeking to avoid obligations under FOI by consistent misuse and abuse of Section 14/1 vexatious exemption is overwhelming

Dransfield doesn’t specify what the overwhelming / tangible evidence is, beyond asserting that he lost his case at the Court of Appeal, so QED: the fix is in. The letter makes a series of allegations about the ICO and demands that the Commissioner is sacked and replaced by himself. The allegations are a mixture of falsehood (he says that they don’t publish their register of interests when they do) and opinion (he claims it is a breach of an unspecified EU Trade law that the ICO usually uses 11KBW for legal services, ignoring the fact that they are the leading information law chambers in the UK). The only verifiable claim is the conflict of interest in having a council leader act as a manager of a team that deals with complaints about councils and political parties. Dransfield only knows about this because I did an FOI request about it and wrote about it here (inevitably, Dransfield spells his name wrong and the mistake slipped through Amazon News Media’s presumably robust fact checking procedures).

If you’re not familiar with it, the scale of the Dransfield conspiracy is breathtaking – construction companies including Balfour Beatty, multiple councils, the Health and Safety Executive, Dransfield’s MP Ben Bradshaw, the previous and current Information Commissioners and many of their staff, West Ham United, the Olympic Delivery Authority and various other Olympic bodies, former secretary of state Chris Grayling, myself, the Upper Tribunal, the Court of Appeal, the Supreme Court and the House of Lords, all working tirelessly to cover up the construction of a network of unsafe buildings and bridges across the UK. Only Dransfield has the insight to see the conspiracy in all its Byzantine complexity, and the entire UK legal system is ranged against him to stop his crusade.

There is, of course, another perspective, but Amazon News Media have seemingly backed Dransfield with gusto. The accompanying editorial hails “Mr Dransfield’s long experience as a social watchdog” and complains of his “extensive scapegoating” but demonstrates a slender grasp on the facts. For example, it claims that vexatiousness was planted at the second, Upper Tier Tribunal, rather than being a feature of the original refusal dealt with by the ICO. Moreover, like Dransfield, Amazon News Media make big play of the fact that it was the ICO who appealed to the Upper Tribunal and Court of Appeal, describing it as an “abuse” of the system. When Dransfield went to the First Tier Tribunal, he was appealing the ICO’s decision, not Devon’s original refusal. If the ICO disagrees with the FTT, it is they (and not Devon) who must take forward the appeal. The appeal process is not open only to the applicant – public authorities and applicants can challenge the Commissioner, but the Commissioner is entitled to challenge decisions that they think are wrong. This is how the system is designed, and Dransfield chose to use that system. Complaining about the result of a process you initiated is acting like the men outside the ECHR.

I put a comment on the Amazon News Media blog, pointing out that I had made 100s* of FOI requests without ever being refused as vexatious (the issue of Alex Ganotis’ role at the ICO just being one of many), pointing out that Dransfield’s hostility and abusive character is probably part of the problem. An unnamed representative of the organisation dismissed this – apparently, when Dransfield called the Information Commissioner Elizabeth Denham a ‘useless cow’ on Twitter, this was just “colourful language [that] perhaps reflects the insult of having your name unreasonably scape-goated for half a decade“. So perhaps the insult is Denham’s fault for not giving Dransfield the face-to-face meeting he’s been demanding since July. It’s an odd perspective, because Dransfield has been calling me a prick and a dickhead for disagreeing with him ever since this mess started.

I can’t work out who runs the Amazon News Media site – it describes itself as “an evidence-based website practising freelance written and video journalism“, but the website, Twitter account and Facebook page are all somewhat anonymous. The site itself is registered to a David Hodgson in New Zealand, but the nameless person who runs the Twitter account told me that it is based in Swansea. Whoever they are,

UPDATE: I know who they are. I’ve read all 59 pages of the judgement.

They have made a fatal error in their analysis of Dransfield’s case. The editorial states that Dransfield enjoys “superior knowledge of lighting protection systems, and Health and Safety regulations” – the problem is that this is irrelevant to the case. S14 of FOI has no public interest test – it’s not about the information, but the process.

The Information Commissioner, the two Tribunals and the Court of Appeal are not supposed to decide whether Dransfield is right about the unsafe buildings. For the record, I think the conspiracy is a complete fantasy, and Dransfield’s requests are the result of a grudge against his former employer, Balfour Beatty. None of Dransfield’s blood-curdling predictions about fatal lightning strikes have come true, and I am not aware of anyone in the UK Health and Safety sector who backs his theories (I’m famously an arsehole and lots of people agree with me about Data Protection despite this impediment).

None of this matters. The question in play is not one about Health and Safety. The question is whether Dransfield’s torrent of requests, complaints and other correspondence were an abuse of the FOI system. Dransfield had every opportunity to put his case before four independent bodies – one of them agreed with him, and the others did not. It’s not impossible for Dransfield to be right about the buildings (as unlikely as this may seem) and yet, because of his hostility, his stubbornness and the sheer weight of his requests, they tip into vexatiousness.

Ironically, despite Dransfield’s antipathy towards the ICO (and his misogyny towards the new Commissioner), his demand that the ICO sort out the vexatious issue is completely wide of the mark. Even if Denham accepted that he was right, she is powerless to reverse the Dransfield decision. If Wilmslow executed a volte face tomorrow, the Court of Appeal decision would still stand. Public authorities could use the CoA judgement against the ICO in the Tribunals who would be bound by it. Only the courts can change the decision – it is out of the Commissioner’s hands. It’s tempting to believe that Dransfield knows this, and he directs his rage toward the ICO solely because he enjoys it, rather than knowing it will change the outcome.

In the end, Amazon News Media grew tired of my interventions and refused to publish my final comment unless I edited out all of the mansplaining, repetition and “snark”. Instead of being censored, you can – if you wish – read the comments on ANM, and then, by way of a conclusion to all this, I reproduce the comment that they found so objectionable.

You can twist what I have said in any direction that suits you. The decisions that the ICO makes are, obviously, about the public interest (where that applies, and with some exemptions, it doesn’t). Sometimes they get those decisions wrong, sometimes they get them right. When a decision has been tested at several levels, and then looked at subsequently by differently constituted tribunals, you have two choices. Either you can believe that there is an enormous conspiracy to subvert the FOI Act, or you can look at the particular case and decide that maybe the system got it right. There is no inner truth here – you believe what you want to believe based on your own prejudices.

What I said above is that Mr Dransfield’s letter, your publication of it and your conspiracy theories about the legal system will have no practical effect. Truss will not intervene because it isn’t her place to intervene in legal cases. The European Court of Human Rights will not intervene, because Mr Dransfield has been refused leave to appeal there. These are facts – you can put a political / paranoid spin on them if you like, but the spin doesn’t change the facts. If you want to stop vexatious decisions being made under Dransfield, someone needs to take a case all the way to the Court of Appeal and get Dransfield overturned. Alternatively, the FOI Act will have to be amended in Parliament. Given that you think the entire legal system is corrupt, I assume you’re not much keener on MPs. Which makes all of the above a monumental waste of time. But at least it gives you and Dransfield something to do.

* ANM refuse to believe that I have made 100s of FOI requests without proof. Given that they are willing to turn an abusive blowhard into a Human Rights champion without any justification, I am content to say that I have, and if they or you don’t believe me, I don’t care.

** It has been suggested to me that in my comment above, I said that the Court of Appeal can overturn Dransfield, whereas the suggestion is that actually, only the Supreme Court can do it i.e. the court *above* the Court of Appeal. If this is right (and I suspect that it is), the difficulty of reversing Dransfield is greater.