Data Protection

The Data Protection Act and its breaches have been a concern of the ICO for many years. The problem of private investigators having the means and the contacts to obtain information in a way that clearly breaches the Act was recognised by the ICO many years before the more recent revelations that led us to the Leveson Enquiry.

There is no doubt that there could have been prosecutions for this type of conduct in the past. The likelihood is that the ICO would have been under-resourced and the need for expensive tech input might have been seen as too costly for what might have been incidences that affected individuals where publicity would not have arisen in any event. The ICO clearly had to cope in a changing world and may have relied on education, disruption and the threat that arose with the occasional high publicity case. Unfortunately those cases were at the easy end of the spectrum as they relied upon people who made errors rather than went out and deliberately targeted individuals for profit.

The ability to obtain information illegally has probably increased significantly with the proliferation of technology where the security surrounding the technology has not kept pace with the use made of it. In many ways the problem may lie with the tech companies who sell this equipment with no apparent regard to helping their customers to keep their information safe. It may also be the case that Government has tried to encourage this unsafe technology in order that they may access it all more easily – but only to ensure our safety, they would say. Perhaps encourage is too strong a word but turning a blind eye to the issues might seen to be the same thing.

Alongside the development of the unsafe tech we see the amazing proliferation of social media. An industry that sought to encourage people to make available to the world their personal details, thoughts and data and seems to have succeeded in convincing the public that it is a good thing to do so. This was not some altruistic development as these are companies who wished to make billions for its founders. All of this has added to the culture where people do not take data protection as seriously as they ought.

When it comes to investigating and prosecuting people now, there is the danger that professionals will be seen as a soft target and that celebs will be seen as a way of showing people how seriously this will be taken and how dangerous it is to enter into this world. The question however must be whether the Data Protection Act is still fit for purpose and whether the failure to educate the general public is where the Act has really failed its good intentions.

A history of prosecuting people for unintentional breaches whilst leaving the ‘criminal’ breaches to proliferate is not way to promote Data Protection as serious matter it undoubtedly is.

Contact Dennis Clarke to discuss your needs and agree a fee structure to deal with this.

The Information Commissioner’s office (ICO) is the independent public authority set up to uphold information rights and duties. Their wide ranging responsibilities include promoting good practice, ruling on complaints, providing information to individuals and organisations and taking appropriate action when the law is broken.

Amongst the Acts they have to watch over are not only the restrictive Acts such as the Data Protection Act 1998 but also what people might consider as the obverse of that Act, the Freedom of Information Act 2000. The department’s duties also include dealing with the INSPIRE Regulations which we suspect are widely unknown although considered important on the European stage.

There are a number of tools available to the ICO for taking action to change the behaviour of organisations and individuals that collect, use and keep personal information. They include criminal prosecution, non-criminal enforcement and audit. The Information Commissioner also has the power to serve a monetary penalty notice on a data controller.

The action the ICO can take will depend on so many factors although the basic problems they have may be budget and a lack of investigators and prosecutors. It is perhaps clear that the ICO has to depend upon receiving complaints and in the major instances relying upon police forces to carry out the main work with the ICO in the background offering necessary advice. Areas where the ICO says it has made a difference include the following. To see what the ICO says about their successes please click on the hyperlink.

• Spam texts
• Marketing Calls
• Cookies

Contact Dennis Clarke to discuss your needs and agree a fee structure to deal with any issues you may have with Data Protection.

The Information Commissioner’s Office will look at a list of 98 clients, including law firms and celebrities. That is the headline but what, really, does it tell us? Did these four private investigators only have an average of 25 clients each? Are no other private investigators involved in this behaviour?

It does seem that only those clients of the 4 known PI’s that will generate headlines are to be looked at which does seem a tad unjust for what we call our Justice system. Does anyone really think that the authorities have identified all the PI’s who have been collecting information in this way or is it convenient to run with a headline 4 so that there is no need to let the public know the extent of the weaknesses in the country’s data protection laws? Are the clients of the PI’s properly targeted as the main culprits or are the dishonest contacts in Government Departments, Banks, Insurers, the Courts, Investigators, Prosecutors etc who release information to the PI’s, where the effort could be better targeted?

The problem faced by the ICO shows up in the way in which they were excluded from the information held by the Police and SOCA. Parliament had to try to force the disclosure to ICO even though it seems Parliament were being told such disclosure was not appropriate at this time and, it seems, that SOCA was more powerful than Parliament and could order Parliament to keep the information secret. People were to be named when there was no information that they did anything wrong. If they have done something wrong then punishment ought to follow but we seem to have forgotten that the punishment is meant to follow the proof of crime.

Perhaps what needs to be looked at here is just why the SOCA appears to be taking so long to deal with what ought in truth to be a series of simple investigations that never needed SOCA to get involved. Someone appears to have wanted a headline and that may be what has caused delay. Each incident to be investigated is probably independent of all others. They are a series of unrelated crimes that individually could and should be investigated by the police forces covering the area where the people are situated. Some central advisor might be appropriate to ensure efficiency but then, that is what the ICO would expect to do?

To what extent does the Press and therefore the public want to have headline making suspects instead of the faceless people who work for HMRC, the NHS, Police, Banks, Insurers etc who decide to sell our information on to these private investigators for their own profit or work in such a lax environment that giving out information to people who are not entitled to is seems quite normal? If Government and big business complied with the Data Protection laws and ensured their employees did similarly then the market for these PI’s would diminish. Unfortunately, the ‘faceless’ will rarely make it on to a list of people to investigate which encourages breaches to continue. Who are the main culprits? Those who ask for the information or those who sell it or simply give it away?

When pursuing the clients of the 4 PI’s the investigators may fall into the trap of assuming that what is now obvious to us all was obvious to the person who asked the PI to assist in the first place. The PI who comes up with unbelievable results may often find that those receiving the information are too excited by the results to act other than naively with the information. How they deal with the information will probably be more telling than the original instructions.

Contact Dennis Clarke to discuss your needs and agree a fee structure to deal with this.

Unlawfully obtaining or accessing personal data is a criminal offence under section 55 of the Data Protection Act. However, whether information is to be considered to have been obtained unlawfully will be the question for investigators and prosecutors to consider before bringing any charges. The usually considerations will have to be made. Is there a realistic prospect of success and is it in the public interest to prosecute.

Whether information was accessed and acquired without the knowledge of the organisation/individual concerned is not the only question to be asked and answered. It is the first question but the more difficult part of any enquiry may be not only the knowledge and expectations of the ‘client’ but whether the information was genuinely required for a ‘public interest’.

People who ask lawyers to instruct an enquiry agent often do so because within the ambit of litigation it is assumed the other party is looking to deceive the court by producing false evidence or by burying material that the court process needs to make a Just or proper decision. The Public Interest is not a question of what sells newspapers. It is a much more important issue and most people would consider the system of civil justice is of such importance that uncovering wrong doing aimed at defeating the Justice the Courts can give is of public interest as we must all have an interest in wanting to trust the courts to reach the right decisions.

On the other hand an enquiry agent may be used to spy on the opposition to acquire information it is not entitled to such as the advice being given by the lawyers for the other side or simply to find ‘dirt’ that is not really relevant but might be misused to force a poor settlement that actually defeats Justice.

Those involved in the industry of Law are well aware that there are many cases where there is real concern that lies are being told and evidence and assets being hidden such that the other side will not be able to receive the relief that would otherwise be granted by the Court. We can read about high value divorce cases where a great deal of time and money is spent to put assets beyond the reach of the former spouse. Unfortunately, the real damage is done in cases where the assets are not very great and the hiding of assets will cause genuine hardship to (usually) the divorcing wife and the children.

There needs to be some real debate on these matters. People need to know where the line is drawn, how do you step over it and expect to be prosecuted if the line is blurred? Is a belief in the morality of your enquiry relevant or do you need to have the evidence before you set out down this road? Using an enquiry agent should not be a concern, but nowadays everyone has to think twice about instructing one just in case they get dragged into something like this when they did nothing wrong themselves.

It has been said that there is no prison sentence that can be given in a case against the clients. Where those clients were professionals following their client’s instructions they are at risk of losing their professional status. It happens if information is lost by accident so we need to understand the impact of what should have been a simple investigation that in the past may not have interested investigators but now the Metropolitan Police need to clear their name in this sorry mess. They need to know that clearing their name is not to be achieved by pursuing other headline grabbing ‘suspects’.

Contact Dennis Clarke to discuss your needs and agree a fee structure to deal with this.