Privacy, electronic communications and monetary penalties: new Upper Tribunal decision

Panopticon reported late last year that the First-Tier Tribunal overturned the first monetary penalty notice issued by the Information Commissioner for breaches of the Privacy and Electronic Communications Regulations 2003. This was the decision in Niebel v IC (EA/2012/0260).

The Information Commissioner appealed against that decision. The Upper Tribunal gave its decision on the appeal yesterday: see here IC v Niebel GIA 177 2014. It dismissed the Commissioner’s appeal and upheld the First-Tier Tribunal’s cancellation of the £300,000 penalty imposed for the sending of marketing text messages.

I appeared in this case, as did James Cornwell (also of the Panopticon fold), so I will not be offering an analysis of the case just now. With any luck, one of my colleagues will be cajoled into doing so before too long.

It is worth pointing out simply that this is the first binding decision on the meaning of the various limbs of s. 55A of the DPA 1998, which contains the preconditions for the issuing of a monetary penalty notice.

Robin Hopkins @hopkinsrobin

Data protection: trends, possibilities and FOI disclosures

At 11KBW’s information law seminar in May, one of the discussion topics was ‘the future of data protection’. Here are some further thoughts on some interesting trends and developments.

Progress at the EU level

A major issue on this front is of course progress on the draft EU Data Protection Regulation – on which see this blog post from the ICO’s David Smith for an overview of the issues currently attracting the most debate. While that negotiation process runs its course, the Article 29 Working Party continues to provide influential guidance for users and regulators on some of the thorniest data protection issues. Its most recent opinion addresses purpose limitation, i.e. the circumstances under which data obtained for one purpose can be put to another. A summary of its views is available here.

Subject access requests

Turning to domestic DPA litigation in the UK, practitioners should watch out for a number of other developments (actual or potential) over the coming months. On the subject access request front, for example, data controllers have tended to take comfort from two themes in recent judgments (such as Elliott and Abadir, both reported on Panopticon). In short, the courts in those cases have agreed that (i) data controllers need only carry out reasonable and proportionate searches, and (ii) that section 7(9) claims being pursued for the collateral purpose of aiding other substantive litigation will be an abuse of process.

Data controllers should, however, note that neither of those points is free from doubt: there are plenty who doubt the legal soundness of the proportionality point, and the abuse of process point has arisen for section 7(9) claims to the court – it should not, in other words, be relied upon too readily to refuse requests themselves.


Damages under section 13 of the DPA is another area of potentially important change. The Halliday v Creation Consumer Finance case (briefly reported by Panopticon) has been given further discussion in the Criminal Law & Justice Weekly here. Based on that information, perhaps the most interesting point is this: defendants have rightly taken comfort from the requirement under section 13 that compensation for distress can be awarded only where damage has also been suffered. In Halliday, however, nominal damages (of £1) were awarded, thereby apparently fulfilling the ‘damage’ requirement and opening the door for a ‘distress’ award (though note that Panopticon has not yet seen a full judgment from the Court of Appeal in this case, so do not take this as a definitive account). If that approach becomes standard practice, claimants may be in much stronger positions for seeking damages.

A further potential development on the damages front arises out of monetary penalty notices: data controllers who are subject to hefty penalties by the ICO may in some cases also find themselves facing section 13 claims from the affected data subjects themselves, presenting a worrying prospect of paying out twice for the same mistake.

Disclosure of personal data in the FOIA context

In general terms, requesters struggle to obtain the personal data of others through FOIA requests. A couple of very recent decisions have, however, gone the other way.

In White v IC and Carmarthenshire County Council (EA/2012/0238), the First-Tier Tribunal allowed the requester’s appeal and ordered disclosure of a list of licensed dog-breeders in the council’s area. In particular, it concluded that (paragraphs 21-23):

“…the Tribunal believes – on the facts of this case – that an important factor for any assessment in relation to the “fairness” of the disclosure of the personal data is best discovered from the context in which the personal data was provided to the Council in the first place.

22. The context, here, is to secure a commercial licence required by law to breed dogs. That license is necessary for the local authority to know who the licensed dog breeders in that area are, and so that the law can be enforced and welfare checks can be conducted as and when necessary in relation to the welfare of the dogs being bred commercially.

23. Licensing – in the ordinary course of things – is a public regulatory process. Indeed it was a public process in Carmarthenshire, in relation to the information that is at the core of this appeal, until the Council changed its policy in 2008.”

The Tribunal was unimpressed by the suggestive language of a survey of dog breeders which the council had carried out to support its case for non-disclosure. It also noted that a neighbouring council had disclosed such information.

The First-Tier Tribunal issued its decision in Dicker v IC (EA/2012/0250) today. It allowed the requester’s appeal and ordered disclosure of the salary of the chief executive of the NHS Surrey PCT over specified time periods, including total remuneration, expenses allowance, pension contributions and benefit details. As to legitimate interests in disclosure, the Tribunal said that (paragraph 13):

“In this case the arrangements (including secondment and recharge from another public authority at one stage) mean that the arrangements are not as transparent as might be wished and it is not entirely clear from the information published (as opposed to the assurances given) that the national pay guidance has been complied with. Mr Dicker asserted that the CEO was paid in excess of the national framework. The Tribunal was satisfied that there was a legitimate public interest in demonstrating that the national framework had been complied with and that the published information did not properly establish this”.

On the questions of distress and privacy infringements, the Tribunal took this view (paragraph 14):

“The CEO is a prominent public servant discharging heavy responsibilities who must expect to be scrutinised. Individuals in such circumstances are rational, efficient, hard-working and robust. They are fully entitled to a high degree of respect for their private lives. However the protection of personal information about their families and their health is a very different matter from having in the public domain information about income… The Tribunal simply cannot accept that anyone in such a role would feel the slightest distress, or consider that there has been any intrusion or that they would be prejudiced in any way by such information. From the perspective of the individual such information is essentially trivial; indeed, in other European societies, such information would be routinely available.”

If this approach were to become standard, the implications for public authorities would be significant.

Further, there are two very important personal data FOIA cases to look out for in the coming months. Following its decision in the Edem case late in 2012, the Upper Tribunal’s next consideration of personal data in the FOIA context is the appeal in the Morley v IC & Surrey Heath Borough Council (EA/2011/0173) case, in which the Tribunal – in a majority decision in which Facebook disclosures played a significant part – ordered the disclosure of names of certain youth councillors.

More importantly, the Supreme Court will hear an appeal from the Scottish Court of Session in July about a FOISA request for the number of individuals employed by the Council on specific points in the pay structure. The council relied on the personal data exemption (contending that individuals could be identified from the requested information), but the Scottish Information Commissioner ordered disclosure and succeeded before Scotland’s highest court. The Supreme Court will consider issues including the approach to ‘legitimate interests’ under condition 6(1) of schedule 2 to the DPA (the condition most often relied upon in support of disclosing personal data to the public). The case is likely to have far-reaching implications. For more detail, see Alistair Sloan’s blog.

Panopticon will, as ever, keep its eye on these and other related developments.

Robin Hopkins

Privacy and data protection developments in 2013: Google, Facebook, Leveson and more

Data protection law was designed to be a fundamental and concrete dimension of the individual’s right to privacy, the primary safeguard against misuse of personal information. Given those ambitions, it is surprisingly rarely litigated in the UK. It also attracts criticism as imposing burdensome bureaucracy but delivering little in the way of tangible protection in a digital age. Arguably then, data protection law has tended to punch below its weight. There are a number of reasons for this.

One is that Directive 95/46/EC, the bedrock of data protection laws in the European Union, is the product of a largely pre-digital world; its drafters can scarcely have imagined the ubiquity of Google, Twitter, Facebook and the like.

Another is that in the UK, the evolution of Article 8 ECHR and common law privacy and breach of confidence actions has tended to deprive the Data Protection Act 1998 of the oxygen of litigation – before the House of Lords in Campbell v MGN [2004] UKHL 22, for example, it was agreed that the DPA cause of action “added nothing” to the supermodel’s breach of confidence claim (para. 130).

A further factor is that the DPA 1998 has historically lacked teeth: a court’s discretion to enforce subject access rights under s. 7(9) is “general and untrammelled” (Durant v FSA [2003] EWCA Civ 1746 at para. 74); damages under s. 13 can only be awarded if financial loss has been incurred, and the Information Commissioner has, until recently, lacked robust enforcement powers.

This landscape is, however, undergoing very significant changes which (one hopes) will improve data protection’s fitness for purpose and amplify its contribution to privacy law. Here is an overview of some of the more notable developments so far in 2013.

The draft Data Protection Regulation

The most fundamental feature of this landscape is of course EU law. The draft DP Regulation, paired with a draft Directive tailored to the crime and security contexts, was leaked in December 2011 and published in January 2012 (see Panopticon’s analysis here). The draft Regulation, unlike its predecessor would be directly effective and therefore not dependent on implementation through member states’ domestic legislation. Its overarching aim is harmonisation of data protection standards across the EU: it includes a mechanism for achieving consistency, and a ‘one-stop shop’ regulatory approach (i.e. multinationals are answerable only to their ‘home’ data protection authority). It also tweaks the law on international data transfers, proposes that most organisations have designated data protection officers, offers individuals a ‘right to be forgotten’ and proposes eye-watering monetary penalties for data protection breaches.

Negotiations on that draft Regulation are in full swing: the European Parliament and the Council of the European Union’s DAPIX (Data Protection and Information Exchange) subgroup working on their recommendations separately before coming together to approve the final text (for more detail on the process, see the ICO’s outline here).

What changes, if any, should be made to the draft before it is finalised? That rather depends on who you ask.

In January 2013, the UK government set out its views on the draft Regulation. It did so in the form of its response to the recommendations of the Justice Select Committee following the latter’s examination of the draft Regulation. This is effectively the government’s current negotiation stance at the EU table. It opposes direct effect (i.e. it wants a directive rather than a regulation), thinks the ‘right to be forgotten’ as drafted is misconceived, favours charging for subject access requests and opposes the mandatory data protection officer requirement. The government considers that promoters of the draft have substantially overestimated the savings which the draft would deliver to business. The government also “believes that the supervisory authorities should have more discretion in the imposition of fines and that the proposed removal of discretion, combined with the higher levels of fines, could create an overly risk-averse environment for data controllers”. For more on its stance, see here.

The ICO has also has significant concerns. It opposes the two-stream approach (a mainstream Regulation and a crime-focused Directive) and seeks clarity on psedonymised data and non-obvious identifiers such as logs of IP addresses. It thinks the EU needs to be realistic about a ‘right to be forgotten’ and about its power over non-EU data controllers. It considers the current proposal to be “too prescriptive in terms of its administrative detail” and unduly burdensome for small and medium-sized enterprises in particular.

Interestingly, while the ICO favours consistency in terms of sanctions, it cautions against total harmonisation on all fronts: “Different Member States have different legal traditions. What is allowed by law is not spelled out in the UK in the way that it is in some other countries’ legal systems. The proposed legislation needs to reflect this, particularly in relation to the concept of ‘legitimate interests’.” For more on the ICO’s current thinking, see here.

Those then are the most influential UK perspectives. At an EU level, the European Parliament’s report on the draft Regulation is more wholeheartedly supportive. The European Parliament’s Industry Committee is somewhat more business-friendly in its focus, emphasising the importance of EU-wide consistency and a ‘one-stop shop’. Its message is clear: business needs certainty on data protection requirements. It also urges further exemptions from data protection duties for small and medium-sized enterprises “which are the backbone of Europe’s economy”. The Industry Committee’s views are available here.

Negotiations continue, the aim being to finalise the text by mid-2013. The European Parliament is likely to press for the final text to resemble the draft very closely. On the other hand, Ireland holds the Presidency of the Commission and of DAPIX – until mid-2013. Its perspective is probably closer to the UK ICO’s in tenor. There are good prospects of at least some of their views to be reflected in the final draft.

A number of the themes of the draft Regulation and the current negotiations are already surfacing in litigation, as explained below.

The Leveson Report

Data protection legislation in the UK will be affected not only by EU developments but by domestic ones too.

In recent weeks, debate about Leveson LJ’s report on the culture, practices and ethics of the press has tended to focus on the Defamation Bill which is currently scraping its way through Parliament. In particular, the debate concerns the merits of an apparently-Leveson inspired amendment tabled by Lord Puttnam which, some argue, threatens to derail this legislative overhaul of libel law in the UK (for one angle on this issue, see David Allen Green’s piece in the New Statesman here).

The Leveson Report also included a number of recommendations for changes to the DPA 1998 (see Panopticon’s posts here and here). These included overhauling and expanding the reach of the ICO and allowing courts to award damages even where no financial loss has been suffered (arguably a befitting change to a regime concerned at heart with personal privacy).

The thorniest of Leveson LJ’s DPA recommendations, however, concerned the wide-ranging ‘journalism exemption’ provided by s. 32. The ICO has begun work on a code of practice on the scope and meaning of this exemption. It has conducted a ‘framework consultation’, i.e. one seeking views on the questions to be addressed by the code, rather than the answers at this stage (further consultation will happen once a code has been drafted).

There is potential for this code to exert great influence: s. 32(3) says that in considering whether “the belief of a data controller that publication would be in the public interest was or is a reasonable one, regard may be had to his compliance with” any relevant code of practice – if it has been designated by order of the Secretary of State for this purpose. There is as yet no indication of an appetite for such designation, but it is hoped that, the wiser the code, the stronger the impetus to designate it.

The ICO’s framework consultation closes on 15 March. Watch out for (and respond to) the full consultation in due course.

Google – confidentiality, informed consent and data-sharing

Google (the closest current thing to a real ‘panopticon’?) has been the subject of a flurry of important recent developments.

First, certain EU data protection bodies intend to take “repressive action” against some of Google’s personal data practices. These bodies include the French authority, CNIL (the Commission nationale de l’informatique et des libertés) and the Article 29 Working Party (an advisory body made of data protection representatives from member states). In October 2012, following an investigation led by CNIL, the Working Party raised what it saw as deficiencies in Google’s confidentiality rules. It recommended, for example, that Google provide users with clearer information on issues such as how personal data is shared across Google’s services, and on Google’s retention periods for personal data. Google was asked to respond within four months. CNIL has reported in recent weeks that Google did not respond. The next step is for the Working Party “to set up a working group, led by the CNIL, in order to coordinate their repressive action which should take place before summer”. It is not clear what type of “repressive action” is envisaged.

Google and the ‘right to be forgotten’

Second, Google is currently involved in litigation against the Spanish data protection authority in the Court of Justice of the EU. The case arises out of complaints made to that authority by a number of Spanish citizens whose names, when Googled, generated results linking them to false, inaccurate or out-of-date information (contrary to the data protection principles) – for example an old story mentioning a surgeon’s being charged with criminal negligence, without mentioning that he had been acquitted. The Spanish authority ordered Google to remove the offending entries. Google challenged this order, arguing that it was for the authors or publishers of those websites to remedy such matters. The case was referred to the CJEU by the Spanish courts. The questions referred are available here.

The CJEU considered the case at the end of February, with judgment expected in mid-2013. The case is obviously of enormous relevance to Google’s business model (at least as regards the EU). Also, while much has been made about the ‘right to be forgotten’ codified in the draft EU Regulation (see above), this Google case is effectively about whether that right exists under the current law. For a Google perspective on these issues, see this blog post.

Another development closer to home touches on similar issues. The Court of Appeal gave judgment last month in Tamiz v Google [2013] EWCA Civ 68. Mr Tamiz complained to Google about comments on the ‘London Muslim’ blog (hosted by Google) which he contended were defamatory in nature. He asked Google to remove that blog. He also sought permission to serve proceedings on Google in California for defamation occurring between his request to Google and the taking down of the offending blog. Agreeing with Google, the Court of Appeal declined jurisdiction and permission to serve on Google in California.

Mr Tamiz’ case failed on the facts: given the small number of people who would have viewed this blog post in the relevant period, the extra-territorial proceedings ‘would not be worth the candle’.

The important points for present purposes, however, are these: the Court of Appeal held that there was an arguable case that Google was the ‘publisher’ of those statements for defamation purposes, and that it would not have an unassailable defence under s. 1 of the Defamation Act 1996. Google provided the blogging platform subject to conditions and had the power to block or remove content published in breach of those conditions. Following Mr Tamiz’s complaint, Google knew or ought to have known that it was causing or contributing to the ongoing publication of the offending material.

A ‘publisher’ for defamation purposes is not co-extensive with a ‘data controller’ for DPA purposes. Nonetheless, these issues in Tamiz resonate with those in the Google Spain case, and not just because of their ‘right to be forgotten’ subtext. Both cases raise this question: it is right to hold Google to account for its role in making false, inaccurate or misleading personal information available to members of the public? If it is, another question might also arise in due course: to what extent would Leveson-inspired amendments to the s. 32 DPA 1998 exemption (on which the ICO is consulting) affect service providers like Google?

Facebook, Google and jurisdiction

The Google Spain case also involves an important jurisdictional argument. Google’s headquarters are in California. It argued before the CJEU that Google Spain only sells advertising to the parent company, and that these complaints should therefore be considered under US data protection legislation. In other words, it argues, this is not a matter for EU data protection law at all. The Spanish authority argues that Google Spain’s ‘centre of gravity’ is in Spain: it links to Spanish websites, has a Spanish domain name and processes personal data about Spanish citizens and residents.

Victory for Google on this point would significantly curtail the data protection rights of EU citizens in this context.

Also on jurisdictional matters, Facebook has won an important recent victory in Germany. Schleswig-Holstein’s Data Protection Commissioner had ruled that Facebook’s ‘real names policy’ (i.e. its policy against accounts in psuedonymous names only) was unfair and unlawful. The German administrative court granted Facebook’s application for the suspension of that order on the grounds that the issue should instead be considered by the Irish Data Protection Authority, since Facebook is Dublin-based.

Here then, is an example of ‘one-stop shop’ arguments surfacing under current EU law. The ‘one-stop shop’ principle is clearly very important to businesses. In the Facebook case, it would no doubt say that its ‘home’ regulator understands its business much better and is therefore best equipped to assess the lawfulness of its practices. The future of EU law, however, is as much about consistency across member states as about offering a ‘one-stop shop’. The tension between ‘home ground advantage’ and EU-wide consistency is one of the more interesting practical issues in the current data protection debate.

Enforcement and penalties issued by the ICO

One of the most striking developments in UK data protection law in recent years has been the ICO’s use of its enforcement and (relatively new) monetary penalty powers.

On the enforcement front, the Tribunal has upheld the ICO’s groundbreaking notice issued against Southampton City Council for imposing audio recording requirements in taxis (see Panopticon’s post here).

The issuing of monetary penalties has continued apace, with the ICO having issued in the region of 30 notices in the last two years. In 2013, two have been issued.

One (£150,000) was on the Nursing and Midwifery Council, for losing three unencrypted DVDs relating to a nurse’s misconduct hearing, which included evidence from two vulnerable children. The second (£250,000) was on a private sector firm, Sony Computer Entertainment Europe Limited, following the hacking of Sony’s PlayStation Network Platform in April 2011, which the ICO considered “compromise[ed] the personal information of millions of customers, including their names, addresses, email addresses, dates of birth and account passwords. Customers’ payment card details were also at risk.”

In the only decision of its kind to date, the First-Tier Tribunal upheld a monetary penalty notice issued against Central London Community Care NHS Trust for faxing patient details to the wrong number (see Panopticon’s post here). The First-Tier Tribunal refused the Trust permission to appeal against that decision.

Other penalty notices are being appealed to the Tribunal – these include the Scottish Borders notice (which the Tribunal will consider next week) and the Tetrus Telecoms notice, the first to be issued under the Privacy and Electronic Communications Regulations 2003.

It is only a matter of time before the Upper Tribunal or a higher court considers a monetary penalty notice case. At present, however, there is no binding case law. To that extent, the monetary penalty system is a somewhat uncertain business.

The question of EU-wide consistency raises more fundamental uncertainty, especially when one considers the mandatory fining regime proposed in the draft EU Regulation, with fines of up to €1,000,000 or 2% of the data controller’s global annual turnover.

By way of contrast, 13 administrative sanctions for data protection breaches were issued in France in 2012, the highest fine being €20,000. Enforcement in Germany happens at a regional level, with Schleswig-Holstein regarded as on the stricter end; overall however, few fines are issued in Germany. How the ‘one-stop shop’ principle, the consistency mechanism and the proposed new fining regime will be reconciled is at present anyone’s guess.

From a UK perspective, however, the only point of certainty as regards monetary penalty notices is that there will be no slowing down in the ICO’s consideration of such cases in the short- to medium-term.

It is of course too early to say whether the developments outlined above will elevate data protection law from a supporting to a leading role in protecting privacy. It is clear, however, that – love them or hate them – data protection duties are increasingly relevant and demanding.

Robin Hopkins

Central London NHS Trust: key points from the Tribunal’s first MPN case

I reported earlier this week on the outcome of the first case of this type to reach the Tribunal. Here is my analysis of the key points.

Factual background

Central London Community Healthcare NHS Trust v IC (EA/2012/00111) concerned the first monetary penalty notice (MPN) to be appealed to the First-Tier Tribunal. The Trust’s appeal has been dismissed by the Tribunal (Professor Angel, Rosalind Tatam and Paul Taylor). The decision can be accessed here: Central London NHS Trust v IC EA20120111.

The background is that the Trust had, on some 45 occasions, faxed a list of palliative care in-patients to the wrong fax number (namely to that of a member of the public who notified the Trust and said he had destroyed the faxes – but he was never traced and destruction could not be confirmed). This was sensitive personal data: it included names as well as information about patients’ medical diagnoses, treatment and domestic situations.


The IC found that the Trust had breached the seventh data protection principle, which requires that:

Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.

The IC decided that the three preconditions for the exercise of his discretion to issue a MPN under section 55A of the Data Protection Act 1998 had been met here. These conditions are (i) there was a serious contravention of the DPA, (ii) this contravention was of a kind likely to cause substantial damage or substantial distress, and (iii) the contravention was either deliberate, or the data controller knew or ought to have known that there was a serious risk that a contravention would occur and would be of a kind likely to cause substantial damage or distress, but failed to take reasonable steps to prevent it happening.

The IC is empowered to impose MPNs of up to £500,000. In this case, the amount was £90,000.

The Tribunal’s jurisdiction

On the Trust’s appeal, one of the first issues for the Tribunal was the extent of its statutory powers under section 49 of the DPA (which mirrors section 58 of FOIA): the Tribunal agreed with the Trust that, as with appeals under FOIA, the Tribunal had jurisdiction to consider the matter de novo; it was not restricted to a review along public law lines. It also found that it could either allow the appeal, or substitute an alternative MPN (including one imposing a higher penalty than that imposed by the IC), or substitute an enforcement notice instead (paragraphs 36-39).

Alleged indication that no MPN would be issued

The only point of evidence in dispute was the Trust’s contention that the IC’s enforcement team had indicated during the investigation that no MPN would be issued. The Tribunal found that the Commissioner’s enforcement officer “did not give any serious indication or assurance that there would be no fine or MPN in this case which in any way excluded the IC from deciding to issue an MPN” (paragraph 46).

The IC’s decision-making process

The decision to impose a penalty is taken by a Deputy Commissioner, in consultation with an internal working party comprising various senior managers within the ICO and one of the ICO’s enforcement lawyers. Having decided that an MPN should be issued, the ICO determined the amount by reference to an internal, unpublished framework as follows:

(i) Serious = £40,000 to £100,000

(ii) Very serious = more than £100,000 but less than £250,000

(iii) Most serious = more than £250,000 up to the maximum of £500,000.

It decided that this case was in the “serious” category. Its methodology was then to take the midpoint of that band and consider any aggravating or mitigating circumstances.

As required by the DPA, the ICO then issued the Trust with a Notice of Intent to issue a MPN to the value of £90,000. The Trust accepted that a financial penalty was warranted, but disputed the amount, making submissions on mitigating factors. The ICO maintained its position and issued the MPN.

‘Assessments’ and the statutory bar under section 55(3A)

By section 55(3A) of the DPA, the IC may not use anything which came to his attention pursuant to his carrying out an ‘assessment’ under section 51(7) when deciding on whether an MPN can be imposed. The Trust argued that the IC’s investigation of its voluntarily-reported breach constituted an ‘assessment’.

The Tribunal considered the rival submissions on the legislative intent behind the bar imposed by section 55(3A) (though on this point it rejected the Trust’s invitation to take ministerial statements into account, on Pepper v Hart principles) and on the range of powers open to the IC. It preferred those of the IC: section 51(7) is directed at educating and advising data controllers, on the basis of a consensual engagement, with a view to avoiding future breaches of the DPA. The aim of the statutory bar provided for under section 55A(3A) is to prevent the IC from using information he obtains via the educational/advisory process provided for under section 51(7) to impose an MPN on a data controller. This case did not involve such an educational/advisory process. There was no assessment under section 51(7) (paragraphs 87-91).

The IC’s adherence to its own policy

The Trust did not contend that the IC failed to apply the statutory guidance on MPNs. It did, however, argue that it failed to consider or adhere to its own non-statutory policy on the reporting of breaches, which said that “the Commissioner will not normally take regulatory action unless a data controller declines to take any recommended action, he has other reasons to doubt future compliance or there is a need to provide reassurance to the public”.

Again, the Tribunal found for the IC: the statutory guidance was what really mattered, but in any event the IC had not departed from its own policies (paragraphs 102-103).

The IC’s exercising of its discretion

Where the conditions for the issuing of an MPN are met, the ICO still has a discretion as to whether or not to issue one. The Trust argued that the ICO had failed to exercise its discretion lawfully: there was no evidence of it taking into account relevant considerations.

The particular considerations relied upon by the Trust were (i) the ICO failed to take proper account of the overriding policy objective to encourage cooperative working between it and data controllers and failed to give sufficient credit for the Trust’s transparency and its co-operative stance, (ii) the effect of the ICO’s policy to impose high profile fines on data controllers who voluntarily report incidents and cooperate with its investigations is to discourage other controllers from being open and transparent, and (iii) the ICO’s approach to cases of this nature creates an unfair and unsustainable distinction between those data controllers who, when suspected of being in breach of the DPA, are required to submit to assessment notices or are requested to undergo consensual audits and those, like the Trust in this case, who voluntarily submit themselves to regulatory scrutiny. The Trust argued that the ICO had failed to think about these points.

The Tribunal rejected these criticisms as misconceived (paragraph 122). While the ICO’s process could have been more comprehensible, it could not be said to have overlooked relevant matters.

Consideration of mitigating factors

Next, the Trust contended that the ICO had failed properly to consider the mitigating factors on which it made submissions. Again, the Tribunal disagreed. The ICO had not erred in this way. In any event, the Tribunal did not seem to find the mitigating factors to be particularly forceful. It said:

“The fact that there was a voluntary notification cannot be given much weight when the Trust was under, in effect, an obligation to report (both to the ICO and to the NHS regionally). In any case it was reported over a month after the breach was discovered. Co-operation was the least that could be expected for such a serious breach. By the time the Trust informed the patients over three quarters were dead. There is still no absolute guarantee the sensitive information has been destroyed. The Trust’s mitigating features are therefore features to which we find the IC could not give much weight. In any case they are almost all post facto events and nothing about the wrongdoing” (paragraph 128).

The Trust’s criticisms of the IC’s decision on the amount of the MPN

The Trust said that the IC never explained its methodology for calculating the amount of the MPN – the three categories of seriousness, for example, were never mentioned, nor was the means of calculation. Once again, the Tribunal did not agree. It considered that the IC had made the principles behind its approach clear to the Trust prior to issuing the MPN.

Notable the Tribunal observed that “We find it interesting that the contravention is only categorised as “serious” and not “very serious” as it seems to us on the facts of this case the IC could have taken a more penal approach to the amount in question” (paragraph 138) and concluded that “We are satisfied that the ICO has reached a figure within a range of reasonable figures it could have considered” (paragraph 139). It also rejected the submission that the IC failed to take the mitigating factors into account when deciding on the amount of the MPN (paragraph 148).

Discount for early payment

The final issue considered by the Tribunal is of significant importance. MPNs provide for a discount (here: 20%) for early payment. If a data controller appeals an MPN and loses, can it still claim the discount? The Trust argued that, by refusing to keep the discount offer open pending the outcome of the appeal, the IC was penalising it for exercising its legal right to have its cased tested by a Tribunal. The Tribunal disagreed: “The purpose of the scheme would appear to us to encourage early payment and also to ensure there is an early resolution to the matter. There is no provision for a without prejudice payment” (paragraph 153). The IC did not err in refusing to keep the discount offer alive, and the Tribunal refused to restore that offer.

Data controllers who contravene the DPA in a serious or potentially serious way should take note of this last point, and indeed of the Tribunal’s first excursion into the new MPN appeal territory.

First-Tier Tribunal decisions are of course not binding on other First-Tier Tribunals. There will be more appeals against MPNs later this year. Panopticon will report on whether the principles from the Central London NHS Trust case are borne out by future decisions. For now, this decision is the best data controllers have to go on.

Tim Pitt-Payne QC appeared for the Trust. Anya Proops appeared for the IC.

Robin Hopkins

Tribunal dismisses first appeal against Monetary Penalty Notice

One of the most notable features of the information rights landscape in 2012 was the issuing by the Information Commissioner of a number of Monetary Penalty Notices for breaches of (primarily, but not exclusively) the Data Protection Act 1998.

The First-Tier Tribunal has today given its decision in the first appeal against such a notice. Central London Community Healthcare NHS Trust v IC (EA/2012/00111) saw the Trust appeal against a £90,000 MPN for the Trust’s repeated faxing of sensitive patient data to the wrong fax number (see Panopticon’s earlier reports here and here).

A summary of the key points from this landmark decision will follow as soon as possible. For now, Panopticon can confirm that the Trust’s appeal has been dismissed.

Robin Hopkins