This post was originally published in August 2010 on the Irish Computer Societyâ€™s Data Protection blog. It has been republished here as it is my original work and Iâ€™m trying to get all my Data Protection musings in one place. Some links have been updated to point to different targets here and on my companyâ€™s website.
I listened with interest this morning to the media coverage of how John Gormley was introducing a new tax on commercial vehicles. My interest was twofold. My wife used to work in the Motor Tax section of a local authority. She left there nearly 4 years ago. Even then drivers of light commercial vehicles had to sign a declaration that the vehicle was for commercial purposes and not for private use. Back then, she used to have private motorists trying to register their large 4x4s as commercial to avoid the higher rates of motor tax on private vehicles. And Iâ€™ve recently written about how penalties for breaches of legislation are the third lever the government has to help balance the books.
So, the existence of a declaration form isnâ€™t really anything new it seems. What is new is that the Minister is asking people to take it seriously and some penalty is now attached to making a false declaration. It may well be that the specifics of enforcement will be difficult, and it is likely that a blanket ban on â€œmixed useâ€ will ever be 100% effective. But it does show that the Government are seeking to maximise the income they can generate from existing processes by increasing the enforcement and the penalties associated. This is precisely the point I made in my last post on this blog when I wrote about how the introduction of penalties for breaches of the Data Protection Acts was probably inevitable, regardless of when the new Directive comes into being, simply by reason of the State needing to open as many sources of revenue as possible.
Of course this â€œchangeâ€ in the Motor Tax regime is, to an extent, unfair as commercial vehicle owners have gotten used to being able to drop the kids to school and use their vehicles on weekends for leisure purposes etc, enjoying all the benefits of private vehicle use on a fraction of the tax. The media response (particularly from the AA) has been to suggest that the Minister will drive people to buy second cars or is imposing a burden on small businesses. And that is unfair. Personally, I think a change to the motor tax regime where a â€œmixed useâ€ category would be introduced might have merit.
However, thinking back to my last post on this blog, would there be as much of an outcry if penalties for breaches of the Data Protection Acts were introduced? Bear in mind that the Commissioner operates on a conciliatory basis, seeking to promote Compliance, not punish non Compliance. Also bear in mind that breaches of the Data Protection Acts occur when Data Controllers fail to respect the Duty of Care that they owe to individuals to hold their personal data on trust and to respect their privacy. I would suspect that, when penalties are introduced (I say â€œwhenâ€ because it will happen either through domestic legislation or further alignment of EU frameworks through a revised Directive) they will be applied only where a Data Controller has failed to act, or acted with willful neglect of their duties under the legislation.
Where currently the Commissioner can dangle the carrot of constructive engagement and guidance, in the future that will be supplemented by the big stick of fines or other penalties.
I suspect that penalties that might be levied for breaches such as (for example) operating CCTV without adequate Fair Processing Notices would be quite small (at least initially), perhaps just enough to get the Data Controller to engage with the DPC. But persistent offending might lead to higher penalties
In short â€“ only the worst offenders will likely be penalised.
So, the morning talk-radio interview might go:
Data Controller: â€œThese new penalties are a burden on usâ€
Interviewer: â€œBut they are just penalties for stuff you are supposed to be doing anyway to protect peopleâ€™s privacy etc.â€
Data Controller: â€œBut itâ€™s a big cost to our business if we get a fine every time we do thisâ€.
Interviewer: â€œBut you shouldnâ€™t be doing it, and the fine is only imposed after the Commissioner tries to get you to correct your behaviourâ€
Data Controller: â€œThatâ€™s not the pointâ€
Interviewer: â€œThat is the point. If you want to avoid the penalty, stop playing fast and loose with peopleâ€™s personal dataâ€.
And thatâ€™s the pointâ€¦ while it may be unfair and burdensome in the land of soundbites to expect a small business owner to buy and run a second car or face a penalty for misusing a commercial vehicle, penalties under the Data Protection Acts would be avoidable simply by complying with the legislation.
So long as you know the rules of the game, work on being compliant, and respect the Duty of Care you owe to your Data Subjects (all things a Data Controller should be doing anyway) there is no additional burden. As such, any increase in penalties would likely be easier to defend than an increase in taxes or restrictions on how a vehicle is used.
It would also be easier to enforce.
So, the call to action from this article? I am suggesting that anyone processing personal data in the course of their commercial activities should start getting their house in order now ahead of any changes which might bring in penalties. Ensure your staff are properly trained in the principles of Data Protection. Start working now to make it part of â€œhow things get doneâ€ in your organisation, not â€œanother bloody thing to doâ€.