Custody Pie for the ICO

February 27, 2012

There can be little doubt that for data protection legislation to be effective there have to be penalties which can be applied where breaches occur. And you won’t get me to argue against the idea that some breaches of the Act are properly characterised as criminal. Moreover, it may well be that the policing of the data protection legislation would be easier if the penalties available for breach were more severe. There is room for sensible argument about whether it is appropriate for those convicted of the offence under the Data Protection Act 1998, s 55 to be subject to imprisonment.

It would be nice if that argument was pursued with regard to evidence and reason.

I was disappointed therefore to find that the {Information Commissioner took the opportunity of today’s conviction of four serious offenders and equated it with a minor conviction under the DPA:}. We are talking comparing apples with those other things you find in the trees – my golf balls. According to Christopher Graham, the four detectives convicted for conspiracy to defraud in an organised blagging venture that lasted a number of years and reaped many thousands of pounds in fees was ‘the same activity’ as the stumbling (and unsuccessful) blag of information about benefit entitlement of a potential tenant by a letting agent. Mr Graham bemoaned the fact that the detectives were each sentenced to terms of imprisonment while the letting agent was fined £200. It seems to be suggested that the reason for the discrepancy in sentence is that the DPA lacks the teeth of custodial sentences.

This is nonsense.

While the fine handed out under the DPA to Pinchas Braun may well be ‘chicken feed’ to some, as Mr Graham suggests (and I don’t think he is using the {Boris Johnson scale:}), it seems likely that the overall cost to the offender of roughly a £1000 was an expensive lesson. Is it likely that Pinchas Braun would have been sent to prison if such a power was available? Not unless he was carrying a very long record and the magistrates were still coping with Saturday’s hangover – and we had lots of empty cells.

Comparing the systematic conduct of the four detectives and the social effect of their actions with that of Pinchas Braun may be fair enough. {i}Equating{/i} the two at any level and suggesting that they are ‘the same activity’ is inexcusable for the ICO – it wouldn’t be great for a tabloid newspaper on a bad day. It is like suggesting that my careless driving that leads to dented traffic cones is the ‘same activity’ as that of the speeding drunk who mows down a crocodile of nuns. Sure we are both engaging in the same activity – driving badly – but even considering comparing the two would be revolting to most.

But let’s improve the debate on this issue of whether custodial sentences for serious DPA offences would have a positive impact. The ICO has a firm view but seems to offer little evidence. Shrill assertions such as occurred in response to these convictions merely damages their case. Why not fund independent research that actually examines all aspects of the issue, drawing on any international comparators that are available? That’s not a consultation exercise – it is about establishing facts. Any analysis would include an examination of the effects of imprisoning people like Pinchas Braun, including the effect on me of funding his porridge.