Original URL: http://www.theregister.co.uk/2010/10/06/ico_privatedata/
ICO wants clearer definition of 'personal' data
Wording of the Data Protection Act creates legal mess
A definition at the heart of the UK's Data Protection Act (DPA) is unclear, creating legal confusion that undermines the whole law, the Information Commissioner's Office (ICO) has said.
The ICO enforces the DPA, advising businesses on how to stay in line with the privacy-protecting law and investigating complaints about organisations accused of breaking it.
But the ICO has told a Government consultation that the definition of 'personal data' on which the whole law rests is inadequate.
"There is a lack of clarity in the current data protection legislative framework in the UK in determining what is 'personal data'," it said. Personal data is the Act's term for the information it protects.
"The wording of the UK DPA is different to that in the EU [Data Protection Directive]," said the ICO's response to the Government consultation. "Whilst both definitions can be interpreted as meaning essentially the same thing, case law and the advances in technology have led to confusion about what the definitions mean in practice, and the data that comes within their scope."
The Ministry of Justice has asked businesses, regulators and individuals for their views on the UK's data protection framework to help it to negotiate with the European Commission as it reviews EU-wide data protection law.
"Any revision of the current legislative framework should be seen as an opportunity to remove this area of doubt and provide data controllers with greater legal certainty as to what constitutes personal data," said the ICO. "The ICO is not of the opinion that the definition necessarily needs to be broader or narrower, but rather that it needs to be more relevant to modern technologies and the practical realities of processing personal data held in both automated and manual filing systems. The definition also needs to be much clearer. The lack of legal certainty in the definition is, in itself, becoming a burden for business."
The ICO also told the Government that the DPA must be altered to address changes in the way that personal data is collected and used. People's increasing use of online services means that organisations collect new categories of information that the law is unclear about, such as the internet protocol (IP) addresses of internet connections.
"In the Commissioner’s opinion, a future framework must deal better with the new forms of identification that are coming into being all the time, particularly in the online environment. It is clear that information such as IP logs held by search engines are being used to identify individuals and to take action affecting them, in contexts ranging from behavioural advertising to digital rights management or national security," it said.
"It is clear that data protection ought to apply to this sort of information. However, we have to be realistic about how such information is treated under the law, what standards we expect those processing it to reach and what outcomes we are seeking for the individual," said the ICO.
It said that the law must recognise that some of these kinds of information cannot be processed in the same way as more traditional material that would qualify as 'personal data'.
"Whilst we may want this information to be kept secure and protected from inappropriate disclosure, it may be impossible in practice to grant conventional subject access to it or to expect individuals to consent to its processing," said the ICO. "The Commissioner hopes that a future framework will treat this sort of information more realistically, perhaps recognising that a simple ‘all or nothing’ approach to the application of data protection requirements no longer suffices, given the breadth of information now falling within the definition of personal data."
"We need to ensure that people have real protection for their personal information, not just protection on paper and that we are not distracted by arguments over interpretations of the Data Protection Act," said ICO deputy director David Smith.
The ICO identified rules on the international transfer of data as another opportunity for reform of data protection laws. The EU Directive forbids the transfer of personal data outside of the EU to any country where its use will not be protected to the same degree as it is within the EU.
The EU law is based on whether or not a country's laws are 'adequate' for the protection of the data.
"This is one of the aspects of the EU Directive that most needs to be amended to deal more realistically with current and future international data-flows. A future framework should focus much more on risk assessment by the exporting data controller and should be clearer about data controllers’ responsibility, wherever they choose to process personal data," said the ICO submission.
The ICO continued: "The Commissioner has doubts about a concept of adequacy based substantially on the nature of the law in place in a particular territory. Adequacy should be assessed more in relation to the specific circumstances of the transfer and less on the adequacy or otherwise of the law of the country the recipient is established in."
The ICO also took issue with the extra protection the law affords to 'sensitive' personal data, information whose nature would cause increased upset if it was unfairly released.
"The current distinction between sensitive and non-sensitive categories of personal data does not work well in practice," said the submission. "The Directive’s special categories of data may not match what individuals themselves consider to be ‘sensitive’ – for example their financial status or geo-location data about them.
"However, rather than creating more categories of sensitive data, the Commissioner suggests a more flexible and contextual concept of sensitivity, which could, depending on the circumstances, extend to any type of personal data."
Copyright © 2010, OUT-LAW.com 
OUT-LAW.COM is part of international law firm Pinsent Masons.