Putting Teeth In the Tiger

This post was originally published in August 2010 on the Irish Computer Society’s Data Protection Blog. I’ve copied it to here as it is my work and I want to put all my Data Protection musings in one place. Please feel free to go and look at it on the ICS site as well.

The Information Commissioner’s office in the UK has recently flagged their lack of powers to the European Commission. This is slightly amusing for those of us working under the Irish data protection regime, who look at the powers that the UK ICO have to levy penalties for breaches of the UK Data Protection Act, compared to the relatively limited powers of the Irish Data Protection Commissioner to issue Enforcement or Prohibition Notices and only to take prosecutions for breaches of the e-privacy regulations.

Of course, the Irish Commissioner does have the power since the 2003 Act to conduct audits and investigations on their own account (i.e. not on foot of an actual complaint). The UK ICO has limited powers by comparison. Likewise, they lack an equivalent Data Breach provisions that the Irish Data Protection  Commissioner introduced last month (but there are plans to do so in the UK soon).

There is a new draft Data Protection Directive in the pipeline (albeit stalled at the request of the French to allow sufficient time for effective consultation). Just as Directive 95/46/EC (the root of Ireland’s 2003 Data Protection Amendment Act) was introduced to address divergences in the implementation of the previous Convention on Data Privacy (Convention 108), it is likely that this revised directive will seek to address some of the remaining areas of divergence in national laws which implement Directive 95/45/EC.  One area which is likely to be addressed will be the nature and type of penalties which will be applicable to various categories of breach.

The drafting of the revised Directive has been delayed. Even when the Directive comes into being, the Irish Government’s track record in implementing Data Protection regulations in a timely manner has been less than impressive. So it may well be that, from point of view of EU mandated changes, we could be in for a long wait.

However there is a significant elephant in the room. The State needs to balance the books. The two traditional levers which can be pulled by the State are either Taxation or reductions in spending. Both of these levers are politically difficult to pull. Increasing taxes creates resistance and revolution  (increases in taxation historically trigger revolutions – particularly taxes on property or on the middle classes). Cutting spending likewise creates resistance and exacerbates social disadvantage (in many cases undoing valuable work previously done using tax euros).

Both of these are the items on the current agenda.

Of course, there is a third lever which can be used to generate revenue for the State and which can (at least in the short to medium term) bring about a change in behaviour. That third lever is the levying of fines and penalties. While this lever may not contribute as quickly or substantially to balancing the books, it would be remiss of the government to overlook any potential source of revenue at this time. And as this revenue is being generated on foot of behaviour which is illegal, under legislation which has been in existence for a number of years, and (unlike a tax) it can be avoided by simply taking the necessary steps to comply with the legislation.

The introduction of such penalties would require a minor amendment to the existing legislation.

So, given that there are indications emerging which suggest upcoming changes to standardise the types of penalty which will apply to breaches of the Data Protection regulations across the EU27 States, and that the State has an increasingly urgent need to generate revenue, I would not be surprised if we were to see some changes in the Data Protection legislation in Ireland sooner rather than later which would introduce some penalties which will put some additional teeth in the Data Protection Commissioner’s enforcement powers.

But this is only a worry for anyone who isn’t complying with the Data Protection Acts. The prudent course of action for anyone processing personal data would be to make sure that they get their house in order ahead of any potential changes, either emerging from Europe or from the Government’s need to claw in as much income as possible.