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?

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.

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.

Idle Hands

On August 27th, the minister for International Trade, Greg Hands MP, tweeted an important update about foreign investment in the UK:

One US company emails “The minister was spot-on with his comments on Brexit & we’ve decided to stay in the UK based on guidance provided.”

It’s clearly a good thing if Brexit doesn’t result in the economic calamity that some have predicted, but by itself, Mr Hands’ tweet doesn’t advance the debate. To judge whether this is good news, we need to know how big a company this is, how likely they were to leave, and what investment and jobs they might bring to the apocalyptic wasteland that is the UK’s future. In short, we need to know who they are. If the Government wants to use decisions made by  private companies for the purposes of propaganda, we need to be able to scrutinise who they’re talking about.

I asked Mr Hands who the company was on Twitter but he ignored me, so I made an FOI request to his Department for the name of the company and all of the information contained in the email. A few weeks later came their reply, a terse response that barely explained the nature of the exemption they were using (Section 43, which prevents disclosures that cause commercial prejudice). Of the public interest, they had this to say:

in this case it is also important that Government protects commercially sensitive information to allow this particular business to continue to operate in anonymity to limit the exposure of its business strategy; the disclosure of which may be advantageous to competitors operating in the same sector

I decided to ask for an internal review. The department could maintain their position by disclosing the email but removing the name, and to be honest, I was still working on the assumption that Hands might have made the whole thing up. The Department for International Trade has a difficult relationship with the truth – only this week, the Secretary of State Liam Fox appeared on television to deny sending a tweet despite the fact that the self-same tweet was being displayed on a massive screen behind him, while in a previous job, Hands tweeted about signing off an FOI request about the number of FOI requests his department had received, despite the fact that the department published the numbers.

My review request covered three areas – I had requested all of the information in the email so the metadata for the email could still be disclosed, the public interest had not been assessed properly (the Brexit debate being possibly the most important issue facing the UK in my lifetime), and finally, I said that the Department should at least contact the company to ask their consent.

The Department’s reply was in turn bland – Hands’ meeting with the company was in private, and they had made no public announcement – and meaningless. They dealt with the metadata issue with this sentence, which I still do not understand: “With reference to your request for metadata, this is nullified by the fact that we have not released any information to you for which we would be required to provide those details.

And so off to the Commissioner’s Office I went. After a few months, the ICO achieved a result. It turned out that the Department had never consulted the company in question, despite the fact that I specifically mentioned this in my internal review request. The ICO told them that they ought to have done this, so they did. Despite their claim in their original reply that the organisation needed anonymity to limit the exposure of their business strategy, the company clearly didn’t feel the same way, so I can tell you that the company is the medical imaging firm PACS Health, and the email came from their Chief Operating Officer (Mr Hands quoted it entirely accurately).

The Department’s approach does not bode well, especially given the turbulent times the UK faces – both outside and within. Secrecy is best, they seem to think. Openness and scrutiny is to be avoided, and has no benefit. Despite having two opportunities to do it (and being prompted by me), those handling my request didn’t think it was worth contacting the company to see what they think. The assumption is that the best course of action is to keep things behind closed doors. Of course, this is a somewhat charitable characterisation of their approach, because it’s entirely possible that the Department didn’t want to contact the company in case they said yes. I mean no disrespect to the fine folk of PACS Health, but they’re not exactly Nissan. How many small companies will have to adopt the same approach to make up for the economic opportunities the UK is about to lose?

The ICO’s attitude wasn’t encouraging either. Admittedly, it was only by complaining to them that I got the information, but the Senior Case Officer wrote to me saying that because of this, they proposed “to informally and proportionately close this matter” without issuing a decision notice. I can see the merit in this sometimes but here, the ICO has an opportunity to send out a message to all public authorities – when claiming commercial prejudice to third parties and private companies, it’s vital to consult them. Doing so in my case would have avoided an internal review and a complaint to the ICO, and they had to do it in the end anyway. By trying to dodge a decision notice, the chance to send this message is lost.

The problem is that unless I withdraw my complaint, the ICO’s main option to refuse to make a decision is to say that my complaint is frivolous or vexatious, and they clearly didn’t think it was. They don’t even have the guts to be transparent about this and say ‘please withdraw your complaint so we can close the case and hit our targets‘ – the Commissioner loftily proposes to close the matter, and I am invited to give the case officer a ring if I want to discuss it.

I asked if they were refusing to issue a decision notice, underlining the point that my case is a good example of the importance of consultation, and I received a somewhat testy reply, telling me that it was clearly not proportionate for the ICO to do so given that I was going to receive the information, and the Department had been told to consult in future. The problem with this argument is that this will only benefit the Department itself, whereas a Decision Notice will be seen by other public authorities and (more importantly) FOI applicants. And separately, there is also some benefit to the Department’s shoddy approach being ventilated. They might be less likely to do it again if it’s a known fact that they did it here.

As he realised that I would object to having the case closed informally, the Case Officer confirmed that a decision notice would nevertheless be issued, although he could not resist a slightly petulant parting shot: “Please note that the process of issuing such a notice can be a lengthy one (i.e. months not weeks)“. I’m not sure why I should be chastened by a reminder of the ICO’s ponderous decision-making processes – indeed, if they were better at making and signing off decisions instead of constantly looking for excuses to close cases, it probably wouldn’t take months anyway.

On both sides, transparency isn’t valued. The Department for International Trade want to keep everything way from scrutiny; the ICO just wants to close cases without going through the admin of writing a decision notice, despite the benefit that a wider dissemination of the case might have. Whatever you think about the future, we need an FOI system that is better hands than this.

Small change

Some senior figures in the charity sector have sought to deal with the Information Commissioner’s recent enforcement against the RSPCA and the British Heart Foundation by suggesting that the ICO’s action is disproportionate and unfair. The fundraiser sorry, academic, Ian MacQuillin has written two blogs which touch on the theme, while a few days ago, Robert Meadowcroft, the Chief Executive of Muscular Dystrophy UK tweeted:

If the is impartial regulator it will investigate practices of and not simply pursue charities

As 2016 is now disappearing over the horizon, I thought it was worth testing the hypothesis that the ICO is taking disproportionate action against charities, and the fines and other enforcement against charities are unrepresentative. TL:DR – it’s complete nonsense.

In 2016, the ICO issued 34 civil monetary penalties – 11 under the Data Protection Act, and 23 under the Privacy and Electronic Communications Regulations (PECR). There are a number of different ways of looking at the figures, and none of them show any evidence of disproportionality.

1) Charity CMPs as a proportion of the total in 2016

Of the 34 penalties, 2 were against charities, so 6% of the ICO’s CMPs in 2016 were against charities.

2) Amount charities were fined, as a proportion of the total in 2016

The CMP total was £3,225,500. The total of CMPs issued against charities was £43,000. This is 1.3% of the total.

3) Proportion of Data Protection CMPs issued to charities in 2016

If you look only at the CMPs issued under Data Protection, the charity proportion is not insignificant – there were 11 DP CMPs, so the 2 charity CMPs are 18% of the total – the same as the police, 1 more than councils, but less than the private sector or the NHS (3 each). However, this is the only comparison where charities feature significantly, and they are not the dominant sector. The next two comparisons are also instructive.

4) Proportion of PECR CMPs issued to charities in 2016

None. This is despite widespread breaches of PECR by charities, including phoning donors who are on TPS and sending texts and emails without consent (for example, the vast majority of mobile numbers gathered via charity posters in 2016 were obtained in breach of PECR).

5) Proportion of CMPs issued for marketing related activities in 2o16

There were 21 PECR CMPs related to marketing, and 2 DP CMPs related to marketing, making 23 marketing CMPs in all. 2 were against charities, which is 9.5% of the total. Given the big charities’ disastrous approach to marketing, this relatively small number is astonishing.

6) Level of CMPs in 2016

The average DP CMP was £108,500; the average charity DP CMP was £21,500.

The average PECR CMP was £84,666.75; there were no charity PECR CMPs.

The highest DP CMP was £400,000; the highest charity DP CMP was £25,000.

7) Other enforcement in 2016

There were 22 enforcement notices issued by the ICO in 2016, 8 under DP and 14 under PECR. 1 of the 8 DP enforcement notices was against a charity, which is 4.5% of the total, or 12.5% of the total DP enforcement notices. Either way, it is a small percentage of the total. Again, if you count the number of marketing related enforcement notices, there were 15, of which 1 was against a charity. This is 6.6% of the total.

8) CMPs since 2010

There have been 69 DP CMPs since 2010 that I can find (they drop off the ICO’s website after a few years); 4 were issued against registered charities, which is 5.8% of the total. The average DP CMP was £114, 163, whereas the average charity was £78,250. It is worth noting that these figures are slightly skewed by the £200,000 penalty against the British Pregnancy Advisory Service, which is a registered charity but receives most of its funding from the NHS.

The CMP against the British Heart Foundation was the 8th lowest CMP overall, while the CMP against the RSPCA was the 9th lowest. The only organisations to receive lower penalties than the charities were small businesses, unincorporated associations, and a bankrupt lawyer.

There have been 47 PECR CMPs that I can find since 2012; none have been issued on charities, which is 0% of the total.

Conclusion

These figures will likely be different in 2017. The ICO has signalled that more DP enforcement against charities is coming, and so the proportion of DP penalties may rise when the totals are in, but that depends on a variety of different factors including the number of other penalties and the ICO’s general approach. However, when you look at the facts for 2016, MacQuillin and Meadowcroft are wrong. Despite years of ignoring the Data Protection and PECR requirements in favour of a flawed, fundraiser-driven approach, the ICO has not taken disproportionate action against the charities. The action taken is a small percentage of the overall total. Special pleading and blame-shifting will not help the sector. Compliance with the law will.