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.

Caesar’s Wife

In May 2016, the Labour member for Heatons North, Alex Ganotis, became Leader of Stockport Council, having been a councillor for some years. A month or so later, I read a story mentioning him in the Manchester Evening News, and his name rang a bell. Alex Ganotis is also a Group Manager at the Information Commissioner’s Office – I know this because he has signed hundreds of FOI Decision Notices on behalf of the Commissioner.

I made an FOI request to the ICO to find out more about Mr Ganotis’ role – in particular, I wanted to know how likely it was that a professional politician might be involved in complaints to the ICO involving political parties or local government. If Mr Ganotis worked on financial services or health, for example, he would need to maintain a high degree of professionalism and neutrality, but there would be no immediate conflict of interest. So I asked the ICO what team he manages. The answer:

Mr Ganotis manages a team of staff who deal with complaints and concerns about councils and political parties

I had to read this several times before I could take it in.

The ICO’s Policy on party political activities is helpfully published on its website. It makes reassuring reading:

The ICO is an independent body and it is important for it to be free from party political bias, and to be clearly seen and acknowledged as being free from such bias……. It is of paramount importance that the ICO is acknowledged as being free from party political bias and influence. The work that we do can often be of a politically sensitive nature and any substantiated allegations of bias would have serious repercussions for the future of the ICO.

The policy sets out a process through which an ICO employee can gain approval for party political activities. I asked when Ganotis went through this process, and the ICO revealed that he was approved in October 2008, which means that his dual ICO / councillor role went on for nearly eight years before he became Leader – he did not seek re-approval when he became Leader, so it seems that the ICO has not reassessed his role now he is a council leader, nor has he asked for this to happen.

I asked for recorded information about the approval process for his role. The ICO has nothing. I asked for any recorded information about measures taken to ensure, in the Policy’s words, that ‘potential for conflicts of interest’ have been minimised with regard to Mr Ganotis’ role. Nothing is held. The ICO added “Mr Ganotis’ line manager and his peers are responsible for assigning decision notices and make a judgement on a case-by-case basis as to what he is assigned, taking into account whether individual cases could pose a potential conflict of interest.” There are no formal arrangements, no written criteria or parameters, nothing to measure or audit against. The ICO enthusiastically fines organisations hundreds of thousands of pounds for failing to maintain properly documented processes, but in the case of having a professional politician managing a team that deals with hundreds of complaints about political parties and councils, the ICO itself sees no need for rigour. Trust whoever decided that this is OK, Wilmslow says, because we have nothing else to offer.

Mr Ganotis is a Group Manager, answering to a Head of Department, but the ICO’s response makes clear that the former Information Commissioner himself, Richard Thomas, approved of the arrangement: “the Commissioner at that time was made aware of his standing and subsequent election“. When I wrote this blog originally, I assumed it was Christopher Graham who was Commissioner, but he did not take over until 2009. ICO trivia fans may remember that Graham was himself once a councillor (for the Liberal Party) and a twice-unsuccessful parliamentary candidate – one wonders if he knew about Ganotis’ status, and if he did not, why nobody told him.

Anyone who has political beliefs or leanings and works in local or central government knows the awkward but vital requirement to set those beliefs aside and act neutrally in the public interest. As a Labour voter in every election since 1992, I have done it myself. It is not easy, but you don’t need to be a saint to achieve it. I cast no doubt on Mr Ganotis’ personal integrity, or ability to do the same. But anyone who thinks that’s the point just needs to Google the title of this blog.

Mr Ganotis has signed hundreds of FOI decision notices on behalf of the Information Commissioner, exercising the Commissioner’s statutory powers. Those notices include  councils across the UK, and government departments run by ministers who, in his other role, Mr Ganotis publicly opposes, and he has been doing so for years. The ICO disclosed to me a spreadsheet of the cases that Ganotis’ team has dealt with since January 2014 (records before that are routinely destroyed). A quick glance at the organisations concerned give a flavour of the issues that pass across the team’s desk in just one month. In July 2016, I can see the Labour Party (8 times), Momentum, Saving Labour, and Progress. It is hard to imagine any team would be more steeped in politics and arguments about political activity than this one, and the (former) Information Commissioner decided that a professional politician was the right person to manage it.

Over the past few years, the Labour Party has carried out its obnoxious and unfair purge, struggled with allegations of member data misuse on all sides (Corbyn, Momentum and Owen Smith), and demonstrated the traditional party blindness to PECR. I have myself blogged sorrowfully but repeatedly about Labour’s Data Protection and privacy woes for several years. In all of that time, only David Lammy’s doomed automated calls have faced any enforcement action (and he wasn’t even an official Labour candidate in the election concerned). To be clear, I have no evidence of any influence being brought to bear on this. But, as the ICO’s own policy states explicitly, “the organisation does seek to ensure that the potential for conflicts of interest is minimised as is the possibility of the ICO being accused of being politically biased“. In this, Mr Ganotis, his line manager and the former Commissioner have failed, and failed spectacularly. How can anyone in politics have confidence in the ICO’s decisions?

Any FOI decision notice involving a council or a government department signed by Mr Ganotis could be tainted, and there are hundreds of them. The ICO’s failure to take action against the Labour Party for a consistently terrible approach to Data Protection and privacy issues is no longer just over-caution, but potentially something far more objectionable. Every case Mr Ganotis has been involved in could be perfect, but the ICO cannot guarantee this with a straight face; their own policy recognises the problem of perception, but their practice is blind to it. They could have moved Ganotis at any point since 2008 to another job of equal standing, and the problem would have evaporated. He is still in place.

That Mr Ganotis could not see that continuing to manage a team responsible for complaints about political parties and councils was incompatible with his role first as councillor and then as Council Leader raises a question about his judgement. That the ICO’s management was either unwilling or incapable of identifying and remedying the potential conflict of interest is a matter of serious public concern.

I have spent a decade and a half criticising, satirising and annoying the ICO in the hope that for no other reason than to spite me, they will become a more effective, more enthusiastic regulator of Data Protection. But this is too much. This is a genuine failure of governance. It could pollute a host of formal decisions (and indecisions) stretching back for years. It has to be dealt with.

I don’t understand how Mr Ganotis could ever sensibly manage the team responsible for political parties and enjoy the confidence of the public. Richard Thomas and Chris Graham should have stopped it, and I hope that the new Commissioner will ask questions about how her managers and Human Resources team could allow such a shocking situation to occur. But if all this isn’t put right, if this bizarre conflict of interest continues acknowledged but unaddressed, we should all look very closely at every decision that emerges from Wilmslow with a more sceptical eye than even I thought possible.

Wanted

Many of today’s newspapers report (once again) that police forces are refusing to name wanted suspects because of Data Protection and Human Rights. It’s tempting to assume that by now, everyone knows that the Data Protection Act does not prevent the disclosure of wanted suspects’ names and photos, so when another newspaper makes an FOI request for the most wanted, the inevitably craven and risk-averse responses don’t really need to be debunked. Surely we all know that the cops either don’t want to get into nuanced conversations about the operational reasons not to name the suspects, they are too cowardly to use Data Protection to justify disclosure, or they just plain don’t understand the process? Is it really worth pointing out why the decision is so knuckle-headed?

Admittedly, without seeing all of the responses, I can’t be certain how bad they really are – all we have are selected quotes. I must also acknowledge that my judgement is clouded by having recently made FOI requests to a number of police forces, an experience that makes me assume that everything these forces have done is wrong. Nevertheless, it doesn’t look good – Humberside Police apparently told the Daily Mail that it wasn’t in the public interest to disclose sensitive personal data, despite the DP exemption in FOI not having a public interest test. Meanwhile, Leicestershire Police claimed a suspected murderer and rapist, could not be named because it went against the ‘principles of fairness’, while Staffordshire said its response was “processed in line with individuals’ rights”, which means either that Staffordshire have received a valid Section 10 notice from each of the suspects in question, or they don’t know what they are talking about. 18 other forces are cited by the Mail as having claimed that Data Protection prevents disclosure.

The only force who appear to have a leg to stand on are Nottinghamshire, who used Section 30(1) of FOI. S30 applies to investigations, so presumably Nottinghamshire are arguing that if they haven’t already named the suspects, it isn’t in the public interest to release them in response to an FOI. I can’t say for certain if this decision is correct, but the use of S30 suggests that Nottinghamshire’s decision is based on operational reasons related to their ongoing investigation. On that basis alone, they deserve the benefit of the doubt in a way that any force using S40 does not.

Rather than spend another 500 words calling police FOI and DP decision makers an assortment of rude names (which was my original plan for this blog), permit me to explain exactly why the use of Data Protection is always nonsense in these situations.

HOW DOES SECTION 40 WORK?

Section 40 of FOI defers entirely to the Data Protection Act when the request is for personal data about someone else. Essentially, if a disclosure of personal data would breach any of the Data Protection principles, if it would breach a valid Section 10 notice issued by the data subject, or if it would be exempt from subject access (i.e. the subject would not receive it themselves if they asked for it). In practice, the Information Commissioner considers that if the disclosure will not breach the first Data Protection principle, S40 is not a barrier. The forces must be arguing that disclosure of the wanted suspect’s data breaches the first principle.

HOW DOES THE FIRST PRINCIPLE WORK?

The first principle says that the processing of data – here, the disclosure – must be FAIR, LAWFUL, and ACCORDING TO A SET OF CONDITIONS.

FAIR

Fair means what it says in the dictionary, and it also means that the data subject must be informed of how their data will be used. The ICO is fond of the notion of ‘reasonable expectations’ – you don’t need to tell people how their data will be used if it’s obvious. This would plainly apply in these circumstances; a suspect cannot expect that their data will be suppressed while they are being hunted. In any case, S29 of Data Protection removes the requirement to use data fairly in any situation where doing so would prejudice the apprehension or prosecution of offenders. Therefore, if disclosure of the suspects’ identities would assist in their capture, fairness is no barrier.If disclosure will prejudice attempts to recover them, the FOI S30 exemption used by Nottinghamshire is the right exemption. The problem that would motivate the police is the effect on their investigation rather than the personal data issue.

LAWFUL

Lawful means that police forces cannot breach *other* laws by the processing of personal data. This could be why Human Rights were cited by some of the forces. If disclosure of the personal data would breach a suspect’s Article 8 rights to privacy, the disclosure would be unlawful, and so DP would be a barrier. But this is nonsense. The right to privacy is not an absolute right, and can be interfered with in a variety of circumstances, including where it is necessary in the interests of national security, public safety, for the prevention of disorder or crime. You can, if you like, argue that naming the suspects interferes with their privacy (I don’t think it does) but even if it does, if publication of the names will assist in their capture, the interference would clearly be necessary to protect public safety or prevent crime. It’s lawful, unless the police argue that disclosure will impair their investigation. If they thought that, they would use Section 30 of FOI.

CONDITIONS

The data in question is sensitive personal data, as it relates to the alleged commission of crime. This means that each force has to meet two conditions in order to disclose: once from Schedule 2  and one from Schedule 3.

Schedule 2 is easy – we can pick from 5 (the processing is necessary for the administration of justice or the processing is necessary for the exercise of public functions in the public interest) or 6 (the processing is necessary for legitimate interests that do not cause unwarranted prejudice to the rights and freedoms or interests of the subject). The first two might be preferable to the balancing exercise required by the third, but if you really think that disclosing the name of a wanted man causes unwarranted prejudice to their rights, you are a moron.

Schedule 3(7)(1)(a) gives us administration of justice again while 3(7)(1)(b) gives us exercise of functions conferred on any person. The DPA was amended in 2000, which also allows any disclosure of sensitive data necessary to prevent or detect an unlawful act.

The only problem here would be if the force believed that disclosure would prejudice their ability to catch the wanted suspects. For the third time, if this is the case, Data Protection is not what they are worried about. They may have good operational reasons not to want to disclose, but they are choosing instead to hide behind Data Protection, which has the dual problem of making them look like politically correct idiots, and damaging the reputation of Data Protection which, as I have demonstrated, can easily be used to justify the disclosure. It took me 30 minutes to write this, and I would happily use it as a justification to disclose personal data; the only reason not to would be an operational reason, and FOI provides much better exemptions to protect the integrity and effectiveness of police investigations.

The only possible explanation I can think of for why the police cling to this idea that DP is a barrier to disclosure is that someone is feeding them terrible advice and guidance about how DP really works, and nobody is willing to stick their necks out and question it. This paints a terrible picture of the information rights culture in policing, and someone needs lay down the law as a matter of urgency.

 

The Gamekeeper’s Fear of the Penalty

Amongst the hype over the end of negotiations over the new EU Data Protection Regulation, one theme kept emerging again and again: Big Penalties. It’s understandable that people might want to focus on it. The UK goes from a maximum possible penalty of £500,000 to one of just under £15,000,000 (at today’s Euro conversion rate) or even 4% of a private enterprise’s annual worldwide turnover. Only a fool would say that it wasn’t worth talking about. It’s much more interesting than the bit about Codes of Practice, and it’s easier to explain than the section about certification bodies.

It would be equally foolish to assume, however, that penalties on this scale will rain down from Wilmslow like thunderbolts from Zeus. At the same time as many were talking up the future, the Information Commissioner issued two monetary penalties under the current regime, one under Data Protection (£250 for the Bloomsbury Patient Network) and one under the Privacy and Electronic Communications Regulations (£30,000 for the Daily Telegraph). The £250 penalty is the lowest the ICO has ever issued for anything, while the PECR one is the lowest for a breach of the marketing rules, notwithstanding that the Daily Telegraph is probably the richest PECR target at which the ICO has taken aim.

You could argue that the embarrassment caused to the Telegraph carries an added sting (the ICO has never before taken enforcement action against a newspaper). It’s equally likely that the oligarchs who own the paper will consider £30,000 (£24,000 if they pay up in 35 days) to be a price worth paying if it had the desired effect on the outcome of a very close election. They’ll probably do it again.

In any case, the Bloomsbury Patient Network CMP is much worse. The Regulation calls for monetary penalties to be effective, proportionate and dissuasive, and yet everybody at the ICO thought that a £250 penalty, split between three people, was action worth taking and promoting. The Commissioner himself, Christopher Graham told the DMA in March 2015 that the ICO was not a ‘traffic warden‘, but if the Bloomsbury Three pay up on time, the £66.67 penalty they each face is no worse than a parking ticket you didn’t pay in the first fortnight.

The ICO’s press release claims that the penalty would have been much higher if the data controller had not been an ‘unincorporated association’, but this is irrelevant. The ICO issued a £440,000 PECR penalty against two individuals (Chris Niebel and Gary McNeish) in 2012, while the Claims Management Regulator recently issued a whopping £850,000 penalty against Zahier Hussain for cold calling and similar dodgy practices. The approach on PECR and marketing is positively steely. The problem clearly lies in Data Protection enforcement, and that is what the Regulation is concerned with.

The size and resources of the offending data controller are a secondary consideration; the test is whether the penalty will cause undue financial hardship. The ICO could bankrupt someone or kill their business if they deserved it. The Bloomsbury Patient Network’s handling of the most sensitive personal data was sloppy and incompetent, and had already led to breaches of confidentiality before the incident that gave rise to the penalty. Enforcement action at a serious level was clearly justified. Even if the level of the penalty was high enough to deter well-meaning amateurs from processing incredibly sensitive data, this would be a good thing. If you’re not capable of handling data about a person’s HIV status with an appropriate level of security, you have absolutely no business doing so at all, no matter good your intentions are. Donate to the Terence Higgins Trust by all means, but do not touch anyone’s data. If the ICO lacks the guts to issue a serious penalty, it would be better to do nothing at all and keep quiet, rather than display their gutlessness to the world.

Whoever made this decision cannot have considered what message it would send to organisations large and small who already think of Data Protection as pettifogging red tape, low on the agenda. Is there an organisation anywhere in the country that would consider the slim chance of being fined £66.67 to be a deterrent against anything. A fine is a punishment (it has to cause pain to those who pay it) and it is a lesson to others (it has to look painful to the wider world). The Bloomsbury Patient Network CMP is neither.

Despite the increased expectations raised by the GDPR, the ICO is actually losing its appetite for DP enforcement, with 13 Data Protection CMPs in 2013, but only 6 in 2014 and 7 in 2015. Meanwhile, there have been 24 unenforceable DP undertakings in 2015 alone, including one against Google which you’re welcome to explain the point of, and another (Flybe) which revealed endemic procedural and training problems in the airline which are more significant than the moronic cock-ups that went on at the Bloomsbury Patient Network. Wilmslow is so inert that two different organisations have told me this year that ICO staff asked them to go through the motions of self-reporting incidents that ICO already knew about, because the only way the enforcement wheels could possibly begin to turn was if an incident was self-reported. ICO staff actually knowing that something had happened wasn’t enough. It’s these same timid people who will be wielding the new powers in 2018.

Admittedly, there will be a new Commissioner, and it’s possible that the Government will pick a fearsome enforcement fiend to go after Data Protection like a dog in a sausage factory. You’ll forgive me if I don’t hold my breath. Nevertheless, something in Wilmslow has to change, because the General Data Protection Regulation represents a clear rebuke to the ICO’s DP enforcement approach.

Most obviously, in the long list of tasks in Article 52 that each Data Protection Authority must carry out, the first is very powerful: they must “monitor and enforce” (my emphasis) the application of the Regulation. Someone recently said that in certain circumstances, some organisations require a ‘regulatory nudge’, but the Regulation is much more emphatic than that. The ICO’s preference for hand-holding, nuzzling and persuading stakeholders (especially those where former ICO colleagues have gone to work) is a world away from an enforcement-led approach.

The huge increase of penalties throws down the gauntlet, especially when the ICO has rarely approached the current, comparatively low UK maximum. But the ICO should also pay close attention to the detail of Article 79 of the Regulation, where the new penalties are laid out. Of the 59 ICO monetary penalties, 57 have been for breaches of the 7th principle (security). The Regulation has two levels of penalty, the lower with a maximum of €10,000,000 (or 2% of annual turnover), and the higher with a maximum of €20,000,000 (or 4% of annual turnover). Breaches of Article 30, a very close analogue to Principle 7, is in the lower tier.

Admittedly, the higher penalty applies to all of the principles in Article 5 (which in a somewhat circular fashion includes security), but it explicitly covers “conditions for consent“, “data subject rights” and infringements involving transfers to third countries, areas untouched by the ICO’s DP penalty regime. The Regulation envisages monetary penalties at the higher level for processing without a condition, inaccuracy, poor retention, subject access as well as new rights like the right to be forgotten or the right to object. The ICO has issued a solitary penalty on fairness, and just one on accuracy – it has never fined on subject access, despite that being the largest single cause of data subject complaints.

The Regulation bites hard on the use of consent and legitimate interest, and misuse of data when relying on them would again carry the higher penalty. Most organisations that rely on consent or legitimate interest are outside the public sector, who rely more on legal obligations and powers. Indeed, the Regulation even allows for the public sector to be excluded from monetary penalties altogether if a member state wishes it. Nevertheless, since they got the power to issue them, only 24% of the ICO’s civil monetary penalties have been served on organisations outside the public sector (2 for charities and 12 for private sector).

I doubt the ICO is ready for what the Regulation demands, and what data subjects will naturally expect from such a deliberate attempt to shape the enforcement of privacy rights. The penalties are too low. The dwindling amount of DP enforcement is based almost exclusively on self-reported security breaches. While the Regulation might feed a few private sector cases onto the conveyor belt by way of mandatory reporting of security breaches, it will do nothing for the ICO’s ability to identify suitable cases for anything else. Few ICO CMPs spring from data subject complaints, and anyone who has ever tried to alert Wilmslow to an ongoing breach when they are not directly affected knows how painful a process that can be. The ICO has not enforced on most of the principles.

It’s been my habit whenever talking about the Regulation to people I’m working for to emphasise the period we’re about to enter. There are two years before the Regulation comes into force; two years to get ready, to look at practice and procedure, two years to tighten up. The need to adapt to the future goes double for the Information Commissioner’s Office. Instead of canoodling with stakeholders and issuing wishy-washy guidance, wringing its hands and promising to be an ‘enabler’, the ICO should take a long hard look in the mirror. Its job is to enforce the law; everything else is an optional extra. It’s wise to assume that the wish for total DP harmonisation will probably be a pipe dream; it’s equally obvious that the Regulation will allow for much easier comparisons between EU member states, and the ICO’s lightest of light touches will be found wanting.

Charity letters

I have written a lot recently about the issue of charities and marketing, and especially as I have another post on the boil concerning the same issues, I had intended to keep my head down for a few weeks and talk about something else (or even, as a friend suggested to me today, nothing at all).

However, I have a short update before the next onslaught. A lot has been made about the idea that after the death of Olive Cooke, the Information Commissioner suddenly woke up to the problem of charity marketing, and in the opinion of one charity journalist “moved the goalposts” by requiring charities to change their approach to the TPS in particular, and the Privacy and Electronic Communications Regulations in general. It is to this topic that I intend to return.

Nevertheless, the Information Commissioner, Chris Graham, told the Public Administration and Constitutional Affairs Committee in October that his office had in fact written to 8 major charities, drawing their attention to issues related to PECR and marketing. At least one charity chief executive (Mark Wood of the NSPCC) denied that his charity was among them, but he has now been obliged to reveal that the NSPCC was in fact one of the eight.

At the time, I made an FOI request to the ICO, asking for a copy of the letter and the names of the eight charities. I was intending to sit on the response for another purpose, but the information is clearly destined for the public domain anyway.

The eight charities were: Barnardos, the British Heart Foundation, British Red Cross, Christian Aid, Great Ormond St, Macmillan Cancer, the NSPCC, and Oxfam.

The letter is very straightforward – it does not refer to specific complaints, as complaints were being funnelled towards the Fundraising Standards Board at the time (the same FRSB which now faces abolition). However, the letter clearly draws each charity’s attention to the Information Commissioner’s guidance on Direct Marketing. That guidance is clear, robust, and written in plain English, with none of the hesitancy or fence-sitting that ICO guidance sometimes demonstrates. It is very strong on the need for clear, unambiguous consent. It is explicit that charity’s promotion activities are direct marketing. And one paragraph leaps out at me:

Organisations can make live unsolicited marketing calls, but must not call any number registered with the TPS unless the subscriber (ie the person who gets the telephone bill) has specifically told them that they do not object to their calls. In effect, TPS registration acts as a general opt-out of receiving any marketing calls

If the charities contacted by the Commissioner acted responsibly, they would have immediately sought out the guidance to which the ICO letter referred. It would be remarkable if they did not. If they did, and then did not recognise that the full force of the law did indeed apply to them, it is hard to imagine how. Mr Wood has put his head above the parapet. Oxfam  denied receiving the letter when in front of the Committee (my FOI response confirms that they did). It would be good to hear from the others.