Organisations that process personal data must notify the Information Commissioner’s Office, and pay an annual fee. Up to now the fee has been £35, for all data controllers. With effect from 1st October 2009, some large data controllers will instead pay a fee of £500.
The changes are made by the Data Protection (Notification and Notification Fees) (Amendment) Regulations 2009 (SI 2009 No 1677). These divide data controllers into two groups: tier 1 organisations, which pay £35, and tier 2 organisations, which pay £500. All data controllers not in tier 2 are in tier 1.
A data controller will be in tier 2 if it satisfies the following three conditions: (i) it is not a charity or a small occupational pension scheme; (ii) it has been in existence for more than a month; and (iii) it has a turnover of £25.9 million or more for the data controller’s financial year and 250 or more members of staff, or it is a public authority with 250 or more members of staff. There are detailed provisions as to how turnover and staff numbers should be calculated for these purposes.
An explanatory memorandum issued by the Ministry of Justice gives the policy background to the change. Essentially it argues that large organisations cost more for the ICO to regulate, and so should pay a higher fee. The memorandum suggests that about 4% of data controllers will pay the higher fee, and that the extra annual income to the ICO will be about £4.7 million.
A more interesting question perhaps – and one that the new Regulations do not affect at all – is who is obliged to notify the Information Commissioner. Anyone who uses a computer to process personal data is a data controller and obliged to notify, unless they are subject to an exemption. Under section 36 of the Data Protection Act 1998, personal data processed by an individual only for the purposes of that individual’s personal, family or household affairs (including recreational purposes) are exempt from the duty to notify (and indeed from most of the rest of the Act as well). This is sometimes referred to as the “domestic use”, or “Christmas card list” exemption: if you keep your family’s Christmas card list on a computer, you do not have to notify the ICO that you are processing personal data, and you can spend the £35 on something else instead.
But what if you put personal data on to the internet? The Lindqvist case in the European Court of Justice suggests that the domestic exemption would not apply here, because information posted on the internet is available to all the world. Since Lindqvist was decided, there has been an explosion of blogging, and social networking, all internet-based. How much of this activity would come within the domestic use exemption remains unclear.