ICO Deputy exposes Data Protection law wish list
Harmonisation of EU data protection law may be a pipe-dream
A question of harm?
The DIC outlined that the ICO is wanting a “harm” or “risk-based approach” (the harm approach is key to understanding the APEC Framework agreement) towards the protection of privacy. This is a seductive idea because in many instances the data controller can identify potential harm (eg, when processing personal data of a confidential nature). That is one reason why there is the promotion of Privacy Impact Assessments, designed to allow a data controller to quantify such harm, prior to any processing of personal data.
However, a word of warning: old-timers like myself are steeped in data protection history. They will remember that a "harm debate" took place in the UK some 35 years ago, well before the UK had any data protection law, and that the notion underpinning a data protection regime based on "harm" was firmly rejected by the Lindop Committee in its Report on data protection in 1978 (Command 7341, paragraphs 18.24-18.27).
Lindop concluded that there was no objective standard whereby a data controller could be able assess harm prior to the processing of personal data because there was no way an organisation could judge whether its personal data or its processing would be sensitive or non-sensitive. This was because sensitivity was a subjective assessment that could only be accurately judged by each data subject concerned; and of course, such assessments can change over time and in context.
For example, in the UK of the 1950s, most gays were fearful of others knowing of their sexuality, unlike today – but this is not the case in parts of Africa. Those who have eagerly contributed to the font of universal knowledge (eg, by YouTube or Facebook offerings about themselves) can easily regret that contribution when the context is changed to looking for employment. The sensitivity associated with a name and address of a Jewish friend changes dramatically if the book is lost and falls into the hands of the Gestapo.
In other words, an assessment made now can change in an instant (I have friends who took a wonderful holiday in Egypt only a six weeks ago) – and if that is the case, what is the value of such assessments and an approach based on harm?
That is why Lindop concluded that the only real issue was whether the data identified or related to a particular living individual and if so, then all the data protection principles should be applied. However, having established the principles did apply, Lindop concluded that the impact of the principles would be modified by a number of factors – for instance, whether there was foreseeable harm to the data subject, the sensitivity of the personal data, or whether the personal data were in the public domain.
Lindop, I believe, was in the fundamentalist camp – the Principles apply – and any pragmatism comes with enforcement and any analysis of what went wrong.
Modification to the Principles
The ICO will push data minimisation and Privacy by Design mechanisms as one of the key changes to any new law. Although this is not a new pronouncement by the ICO, I would argue that many of these requirements already form part of the current Data Protection Principles. For instance, data minimisation can be achieved by application of the Third Data Protection Principle – for example, why do you need to register your details on a website to access its free content? Isn’t that an example of excessive collection of personal data?
Of course, website owners can make such collection of personal data relevant. For instance, a data controller might want to keep records of who visits sites so that they can modify content to meet the aspirations of those who visit the site, or even deliver some marketing to those registered (heaven forbid). However such purposes (and marketing choices) should be declared to those who register via a fair processing notice.
I also think that many aspects Privacy by Design link to the Seventh and Sixth Principles (eg, obligations to have regard to the “state of the art” in relation to the security of the processing of personal data or in relation to respect the rights of data subject, so that they have choices over who can access their personal data and when. Free subject access can easily be designed into any new project that involves the processing of personal data).
The ICO would like to see collective redress available. Many of you know that the current PECR Regulations allows for aggrieved recipients of marketing messages to claim compensation for damage caused by the processing of such messages sent in breach of the Regulations. So how much is one individual damaged, for example, by a single spam message – somewhere between 0.01p and 0.1p would be a healthy overestimate? The result is that nothing happens on the PECR "compensation for damages" front; however, if there is collective damage, then the costs and risks to the spammer is much increased.
However, I should add that the Commissioner already has powers to protect the collective. For instance, a Monetary Penalty Notice could be applied to spammers using personal data (eg, an email address is personal data) where there has been blatant disregard for the email marketing rules.
With respect to notification (a hated activity), the DIC pointed out that the ICO is funded by notification fees. Reduce notification and the Government would have to pick up the tab. My solution to this is to allow the ICO to be funded by parliament; it is far too easy for an executive to strangle data protection progress by withholding state grant-in-aid to the regulator.
Finally, the Commissioner is fond of soft law – so expect more Codes of Practice in the UK.
What do I think? There will be little progress and the UK’s Data Protection Act will be largely unchanged in the current decade. There might be tweaks at the edges – but no fundamental change.
This story originally appeared at HAWKTALK, the blog of Amberhawk Training Ltd.