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Wording of the Data Protection Act creates legal mess

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"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.

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