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ICO finally gets new data protection penalty powers

One fine day in April 2010

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Privacy regulator the Information Commissioner will be handed new powers to issue fines next April. The Commissioner's office has confirmed for the first time the date on which it will be able to hand out new fines.

The Information Commissioner's Office (ICO) was promised the long lobbied-for powers by Government but no date had been set. The ICO says that it has been told the new powers will take effect in April.

Under the Data Protection Act (DPA) the ICO cannot issue fines for breaches of the eight data protection principles at the heart of the law. From next April that will change and it will be able to issue fines for knowing or reckless breaches of the Act's principles.

"The ICO has pressed strongly for monetary penalties where the Data Protection Act has been knowingly or recklessly breached. Penalties are being introduced next April, but are not yet in force," said an ICO statement.

A spokesman for the ICO said that it did not yet know how much it would be allowed to fine people and organisations, and that there was "some work still being done" on the fines.

The fines can be levied by the ICO when one of the eight principles have been seriously breached, but only if the ICO is convinced that the breach was deliberate or that the data controller knew, or ought to have known, of the contravention risk, and that the contravention would be likely to cause substantial damage or substantial distress and that the controller failed to take action to stop it.

The power to make the changes were introduced in the Criminal Justice and Immigration Act in 2008. The Ministry of Justice is the Government department responsible for the changes, but it had no comment to make on the timescale.

Rosemary Jay, a privacy law expert at Pinsent Masons, the law firm behind OUT-LAW.COM, said that it was "surprising" that the date was announced by the ICO and not by the Ministry of Justice.

"Data controllers should be warned that they cannot rely on this timetable," she said. "The date has not been announced or confirmed by the relevant Government department, the Ministry of Justice; the date of commencement is in the hands of Parliament and the Government not the ICO."

"The position is complicated by the fact that the power to fine cannot be brought in until all the preparatory work has been completed and a Code of Practice issued," she said.

"The fines provisions are part of a wider agenda of increased powers for the Information Commissioner and observers would expect many of these to be put forward as a package by Ministers," said Jay. "The ICO will of course have been working behind the scenes with the Ministry and will be aware of the proposed timetable but timetables can slip, events can intervene and there can be no certainty until Parliament has agreed the commencement order."

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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