TV Licences, Data Protection, and the comments of the DPC

It was great to hear the Data Protection Commissioner on Newstalk this afternoon explaining the situation regarding the proposed TV License data slurp. I’ll post a link to the podcast when it is available.

A quick summary of key points that he made is as follows:

  1. The Government must pass legislation to allow for any access to data.
  2. The accessing of subscriber data is an interference with fundamental rights so, while Public Interest (e.g. maximising revenue from TV licence to keep Fair City on the air), the Government must convince the Oireachtas that the levels of access proposed are justified. The DPC specifically said that “the Oireachtas need to think about this”.
  3. He went on later to restate the importance of the Public Interest needing to out weigh and justify the interference in fundamental rights.
  4. He specifically flagged that whatever mechanism and process is proposed in legislation, it needs to be a “reasonable and proportionate measure”
  5. An Post should only have access to the minimum amount of information necessary to confirm if there is use of a TV service.

Hmmm.. I’ve heard comments like that somewhere else recently

A slight difference of opinion…

The DPC compared the access of data from TV service providers as being similar to the legislation that was brought in to establish the Property Register for the LPT tax.

I respectfully have to disagree a little on this. The LPT register required a completely new database to be created from scratch for the purposes of effectively, efficiently, and fairly levying a new tax. Data was drawn from multiple State and private sector data sets to create the best possible register for that purpose [disclosure: my company was involved in some preliminary work around the establishment of the LPT Register].

What is proposed in the case of the TV licence is to supplement an existing private sector database (An Post’s) with data from potential competitors for the purpose of detecting non-compliance with an existing tax/levy. It is a subtle difference and should affect the determination of what is proportionate. There is already an investigation and detection function for TV licence enforcement. Any level of access other than on a case by case basis for the investigation of and prosecution of non-payment would require a clear justification in my view to pass a proportionality test. Rather than comparing to the LPT establishing something new, a more appropriate comparison would be to existing Revenue powers to request data from banks in the course of an investigation, not as a general blanket bulk extraction.

The Thin End of the Wedge

The DPC is “concious of making sure that this won’t be the thin end of the wedge”. In that case attention needs to be paid to how the legislation evolves. As I pointed out yesterday, Sky and UPC are both also providers of telecommunications services. In defining what data is being accessed for what purpose, it needs to be clarified if this legislative data grab will be constrained just to television service packages or to a wider range of product offerings. And within that there then needs to be consideration as to how An Post would verify that a broadband subscriber was or was not using their service to stream TV to a laptop or handheld device, a scenario that is currently not covered by the TV licence, but is proposed to form part of a Household Broadcasting Charge in the not too distant future.

This is where there is another key difference between this proposed legislation and the LPT. The LPT legislation, from the very beginning, made clear that data would be obtained from private sector organisations to enrich and validate data on the Register obtained from existing State sources. While some thought that it was the tightening of Big Brother’s grubby mitts around our data, it was at least an open and transparent initiative.

If the intent here is to build a Household Broadcasting Charge Register by enriching the existing An Post data sets with 3rd party data, then the Minister and Department should come out and state that and place the Public Interest question around this proposed legislation on a more transparent footing, which in turn may affect the consideration of what form of mechanisms and measures would be reasonable and proportionate to achieve that end. That will ensure that the legislation that the Oireachtas may eventually pass will be fit-for-purpose, that the correct balance of rights between the individual, the organisation, and the State will be considered, and there can be a proper debate and provision of information about what constitutes a “reasonable and proportionate measure” in that context.

If the data is required to support existing investigation and detection processes for the current TV licence, I would suggest that what is reasonable and proportionate is more in line with Revenue’s powers of access to bank records on a case by case basis then the mass integration of data required to create the infrastructure for an entirely new tax head, and it is on that basis that the assessment of “reasonable and proportionate” should be made.

The de minimis principle

The DPC was clear that only the minimum necessary amount of information for the specific purpose could or should be shared. Hear hear!

Of course, his comment presumes a bulk sharing obligation is required or is proportionate. As I wrote yesterday, and as I mention above, if the proportionate response is to improve evidence gathering in investigation of suspected non-payment of a licence fee then An Post (or any other collecting agency) could simply ask, on a case by case basis, “Does X address have a television service” and receive a simple yes or no response.

The Commissioner’s comments don’t rule that approach out however.

Of course, de minimis is a principle that applies to the purpose and intent of the processing. If the intent or purpose is to ensure that everyone who has a Sky or UPC subscription has paid their TV licence, it would be quicker, easier, and cheaper, to make them collecting authorities for their customers and leave An Post with the rump, with the Department managing a reconciliation process on an annual basis. It would add €13 or so to a Sky TV subscription, and it would ensure that every location where a single customer had a Sky TV box installed was paying the fee.

The Prickly Problem of Proportionality

It is good to see the DPC making positive comments about how the Oireachtas needs to reflect on how any legislation that might emerge would impact on fundamental rights. The Government must convince the Oireachtas (but with a majority, that is a fudge), but the Oireachtas has to act in accordance with the Constitution and with our obligations under EU Treaties. The ECJ has ruled on the Data Retention Directive and has made it clear that for serious offences that the interference in data privacy rights through retention of or bulk access to communications data must be proportionate. Digital Rights Ireland have yet to return to the High Court for the next round of their challenge to the Communications Retention of Data Act 2011, but it defines a “serious offence” as being one carrying a prison sentence of at least 5 years.

For a €160 licence fee and a summary offence with a €1000 fine on first offence or €2000 on subsequent offences (people go to jail for non-payment of fine, not non-payment of TV licence) it will be interesting to see how proportionality will be established.

It may be that the Government will need to consider alternative mechanisms for enforcement of the TV Licence (or future Broadcasting Charge) that does not require the sharing of data. The key objective, after all, is to maximise the cash inflow for the State to support development of indigenous broadcasting while at the same time minimising enforcement costs and minimising the extent to which data is being shared and processed between private sector organisations, albeit on behalf of the State.

Of course, any reliance on full and frank debate in the Oireachtas has to recognise that the Government has a majority and we operate a whip system in our parliament. Government TDs will vote with the Government line. Which means that legislation might get passed that is actually a disproportionate response to the problem. Gerard Cunningham (@faduda) kindly reminded me of this on twitter.

Ultimately, the Minister needs to be clear in his Problem Statement before rushing to a solution, and the Oireachtas needs to think outside the box when assessing the reasonableness and proportionality of the legislative response to the realities of the telecommunications and broadcasting markets.