The missing courage of the ICO

The missing courage of the ICO

I note from Jim Killock’s pinned repost of a post by David Erdos on X, that the media and the ICO have issued a report, dated March 2024, on journalistic practices and the Data Protection Act 2018. This was produced as part of response to the Leveson Report, itself, spawned by the Millie Dowler & celebrity phone hacking scandal. Erdos makes the point that the ICO did not make use of its investigatory powers, which he refers to as §17 powers nor that the story was followed by … err! … the Press.

Additionally, over the last week, the ICO announced its report into its investigations into the Labour Party and its compliance with GDPR/DPA. Again, they weren’t asking the big questions and say more about the mitigation actions than the compliance failures. This allows the Guardian to run a headline focusing on the failure to respond to DSARs, in fact the Guardian focuses only on late response, and not on failure and everyone is silent on the refusals.

I would like to know what measures the Party took to ensure that their IT sub-contractors met their obligations as data processors, what measures the Party took to ensure their DPO was qualified[1] according to Article 37 of the GDPR, why no compensation has been offered/mandated to victims of the breach, what measures Labour took to ensure the completeness of any DSARs, what measures the Labour Party took to ensure that only appropriate staff had access to personal data and what measures the Party took to ensure that democratic rights of members weren’t adversely effected by the breach? It would seem the ICO have not asked these questions; this is exceedingly disappointing.

Regulatory capture is a well-studied phenomenon. However, it’s simpler if one is the government rather than a private business or an NGO. It seems pretty clear that the ICO is frightened of the major political parties which since human rights law is designed to protect citizens from governments, rather spoils the point of having one. NB the GDPR has a lot to say about the importance of the independence of both Data Protection Officers and also the national data protection supervisory authority.

[1] The data protection officer shall be designated on the basis of professional qualities and, in particular, expert knowledge of data protection law and practices … n.b. Data Protection practices require an expertise in cyber security. …

Privacy Regulation

Privacy Regulation

I wrote a little piece on my linkedin blog on the EU Commission’s proposal to agree a data “adequacy” agreement. I point out the next set of hurdles, although I downplay the likelihood of any intervention by the CJEU but note that not was critical in striking down the original EU/US “Safe Harbour” agreement. I note that one threat to its renewal at the end of its four year live is the desire and plans of the British Govt to depart from the current legal protections which are based on the EU’s GDPR.

Issues of state surveillance, the European Council’s Convention 108 and the Human Rights act are all engaged. We’ll probably get it, but for it to be renewed, we’ll have to remain aligned with the GDPR & C108. The right to seek judicial redress by EU citizens may become important as it is a point of contention between the EU & US over the Privacy Shield.

One indicator of a desire for divergence is the advert for the role of Information Commissioner, which asks for,

The Government’s National Data Strategy sets out its ambition for the UK’s pro-growth and trusted data regime, one that helps innovators and entrepreneurs to use data responsibly and securely, without undue regulatory uncertainty or risk, …

cabinetoffice.gov.uk

This has been picked up by the Open Rights Group, who are asking people to write to their MPs, we need an independent Privacy Regulator.

The retreat from the promise of the GDPR is not just a UK phenomenon, across Europe pro-business politicians are beginning to say that it’s too onerous. It’s a shame we’re out, our voices no longer count …