The Downing Street Lovers and the Information Commissioner

June 4, 2013

I always have my ear to the ground – it is how I got the bad back. But even I, plugged in as I am to the mainstream social media (and the rural Calne gossip mill), have no idea who the Downing Street lovers are. If Twitter trends are anything to go by then, judging from today’s trends, it must be James Caan and the Woman of the Decade (Victoria Beckham). That fits with the known facts as (a) neither are in the Cabinet, (b) both are middle-aged (I am trusting Posh Spice does not read my blog or I will be the subject of a contract killer’s ire), and (c) they both have at least {i}been{/i} to Downing Street. The rural Calne gossip was probably something to do with a horse called Siam but I was only half listening – as you do when eavesdropping while half-deaf – and the gossipers may have strayed off topic.

My ignorance (on this topic at least) is remarkable. I think it is the Bercow effect. The fact that the Daily Mail did not reveal the lovers’ identities ‘for legal reasons’ (as opposed to their normal reluctance based on discretion and respect for private lives) has alerted the world at large to the need for discretion. I don’t even know what the legal reasons are. I imagine that the recent threats of imprisonment in {i}{ Attorney-General v Harkins and Liddle:}{/i} might have had an effect on the twitterati, but I am pretty sure that without Sally Bercow we would ‘know’ who was involved (although, if we really followed the Bercow precedent, we would not really know as the wrong people would be named).

You may struggle to see the relevance of the Information Commissioner and be especially disappointed to discover that he is not the Whitehall Casanova. The connection arises from his letter to the Secretary of State about the EU’s data reform package (see {DP Reform Package: ICO Reiterates Concerns:}). It read less like a note of concern and more like an admission of defeat. It may be that it is aimed at strengthening Chris Grayling’s negotiating position when insisting, along with a number of other Member States, that the Commission’s proposed regime is impracticable. But, putting aside some confusion in the letter (welcoming stronger sanctions but also expressing concern about the emphasis on punishment and sanctions – from the man that wants to send people to prison for offences under the Data Protection Act), it is quite a clear statement on its face that the Information Commissioner really believes that the stricter regime envisaged cannot be implemented. The tale, or rather the lack of tales, about the Downing Street lovers should be a lesson that the impossible can be achieved, at least as near as dammit. It is only a few weeks since we were all reflecting that there was no chance of limiting the spread of such rumours on the Internet and throughout social media in particular. And yet I remain in ignorance. The ICO might well be able to greatly improve its chances of making the new regime work with real commitment to its principal aims, however difficult it currently thinks that will be.

While the prospect of data protection enforcement by some sort of fantasy traffic warden (‘I agree mate, those double yellows shouldn’t even be there – and anyway I cannot afford a pen to write you a ticket’) is appealing, it does not make me feel that my data is safe in the ICO’s hands when it shows so little commitment. If the ICO were to look to enforce the letter of the law against high profile offenders rather than fining local authorities for some local government officer’s oversight, I might feel more confident. And not all the proposed changes that are said in the letter to Chris Grayling to be ‘very costly’ need be costly for the ICO. For example, surely the requirement for the reporting of all breaches can be dealt with by the person responsible for the breach completing a web form which is filtered with technology. I am also at a loss as to how ‘limited discretion for DPAs over administrative sanctions’ can be more costly for the ICO – it may not be a good thing to limit discretion but discretion, properly exercised, is expensive and limiting it must surely create a saving.

Of course, by the time you read this, the cover of the Downing Street lovers may have been blown and the EU Council’s ‘compromise text’ on the DP reform package may turn out to be a lethal injection. But I still think that I would prefer to have an Information Commissioner who dreams the impossible dream – or at least just occasionally whistles the tune.