Intellectual Property Law

The Information Commissioner's Office has published a 'wishlist' of new powers and penalties that it wants to be given.

The ICO publication is called "DATA PROTECTION POWERS AND PENALTIES: The Case for Amending the Data Protection Act 1998". We've created a brief summary of the key points below.

New powers

The ICO has requested:

• "a power for the Information Commissioner to inspect personal data and the circumstances surrounding its processing in order to assess whether or not any processing of the data is carried out in compliance with the [Data Protection] Act."
• "a power for the Information Commissioner to require a data controller to provide him with a report by a skilled person"
• "enhanced enforcement powers to enable the Information Commissioner to bring seriously unlawful processing to an immediate halt, to place formal undertakings on a statutory basis and to enable the Information Commissioner to take enforcement action to prevent breaches of the Act that are likely to occur"
• "information notices that can be served on any person rather than just a data controller."

New penalty: knowingly/recklessly failnig to comply with the DP principles

The ICO wants "a penalty for knowingly or recklessly failing to comply with the data protection principles so as to create a substantial risk that damage or distress will be caused to any person".

This penalty would not be a prison sentence; the ICO is looking for a fine with no maximum limit.

In his proposal document, the ICO gives reasons for wanting this new penalty: "There is  a shortfall in the sanctions available to the Information Commissioner and the means of enforcing those sanctions swiftly and effectively. There is no effective punishment or deterrent available for those who knowingly or recklessly disregard the requirements of data protection law in a way that causes a significant risk of harm whether directly to individuals or indirectly by undermining respect for the law."

This wishlist is not the subject of legislation or any consultation, and so at this stage is no more than confirmation of the changes that the ICO wants in the aftermath of the HMRC fiasco.