Agentless Backup is Not a Myth

A report by the Justice Committee suggests that fines do little to discourage breaches of the Data Protection Act (DPA) because the financial rewards of doing so can be so great.

"Using deception to obtain personal information or selling it on without permission are serious offences that cause great harm. Magistrates and judges need to be able to hand out custodial sentences when serious misuses of personal information come to light," said committee chairman Sir Alan Beith.

The DPA states that it is generally unlawful for a person to "knowingly or recklessly without the consent of the data controller to obtain or disclose personal data or the information contained in personal data, or procure the disclosure to another person of the information contained in personal data" without the consent of those who control the data.

Under the Criminal Justice and Immigration Act, the Secretary of State has the power to introduce new regulations that would allow a prison sentence to be available where a person unlawfully obtains personal data with the consent of the Information Commissioner. This power has not yet been brought into force, though.

The report said that fines under the DPA were usually much lower than permitted because judges and magistrates must take into account the offender's ability to pay. This meant that some fines were as low as £50 per offence, the report said.

"It is clear to us that the current penalties for [these offences] are inadequate. If people can make more money from a single offence than the fine which would be imposed for such an offence, then there is no deterrent," the report said.

It added that a fine was not an appropriate sentence in circumstances were the data disclosed endangered or traumatised the victim.

Last month Information Commissioner Christopher Graham, the UK's data protection watchdog, told the Committee that the courts should be able to issue jail sentences to those who engage in blagging activities.

"It beggars belief that – in an age where our personal information is being stored and accessed by more organisations than ever – the penalties for seriously abusing the system still do not include the possibility of a prison sentence, even in the most serious cases," he said.

The report added that the Information Commissioner needed the power to force private sector organisations to undergo information audits.

"In the wake of the controversy over referral fees, it is noteworthy that no insurance companies have agreed to an audit," the report said.

It added that current proposals to ban referral fees in personal injury cases should be extended to all other types of case.

"Referral fees reward a range of behaviour and banning them, together with introducing custodial sentences for breaches of the Data Protection Act, would have the twin effect of both increasing the deterrent and reducing the financial incentives for these offences," the report said.

Data protection specialist Marc Dautlich of Pinsent Masons, the law firm behind Out-Law.com, agreed with the Committee that stronger penalties were needed.

"The current trade offs for those engaged in using deception to obtain personal information is simple: the profits typically far outweigh the penalty. The consequences for victims of the offence can also be very serious. The sanction should be correspondingly serious and that means a custodial sentence," he said.

"This is already the case for activities that are sometimes committed in parallel (bribery and fraud, for example) and the power is already there in the Criminal Justice and Immigration Act, it just needs to be commenced. I would agree with the Commissioner and the Report that the case for custodial sentences is overwhelming," he said.

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