Consultation on PECR Monetary Penalty Notice Threshold: Initial Thought

Section 55A of the Data Protection Act 1998 (DPA) confers upon the Information Commissioner the power to issue a Monetary Penalty Notice (MPN) to Data Controllers for serious contraventions of the DPA.  This power is extended to cover contraventions of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECRs) by virtue of an amendment made to Regulation 31 of the PECRs.

The test for issuing a MPN for contraventions of either the DPA or the PECRs is as set out in Section 55A of the DPA and it requires a number of boxes to be ticked before the Commissioner can issue one:

  • That the commissioner is satisfied that there has been a serious contravention of section 4(4) of the DPA (or a serious contravention of the PECRs)
  • The contravention was of a kind likely to cause substantial damage or substantial distress
  • and either the contravention was deliberate but failed to take reasonable steps to prevent it; or that the data controller knew (or ought to have known) that there was a risk that the contravention would occur and that such a contravention was of a kind likely to cause substantial damage or substantial distress but failed to take reasonable steps to prevent it

It looks complicated, and to an extent it is.  However, what is clear from the way in which the statutory provisions have been drafted and from the binding interpretation given to them by the Upper Tribunal in The Information Commissioner v Niebel [pdf] is that the test is an almost impossibly high one to meet.

The Department of Culture Media and Sport (DCMS) has issued a consultation document seeking the views of those interested as to whether the threshold should be lowered (and to what) for the Commissioner to be able to issue a MPN in respect of breaches of the PECRs (the proposal would see the test remain as is in respect of contraventions of the DPA).

The consultation document makes three proposals:

  1. do nothing
  2. replace the requirement for the contravention to be of a kind likely to cause substantial damage or substantial distress with a requirement that the contravention is of a kind likely to cause annoyance, inconvenience or anxiety
  3. remove the requirement for the contravention to be of a kind likely to cause substantial damage or substantial distress altogether and replace it with nothing

The Commissioner favours the third option and the DCMS state in the consultation document that their provisional view is that the third option is their preference too.

I’ve given the consultation some consideration since its publication on Saturday and begun to formulate my response (it’s nor a particularly lengthy consultation document and does present three clear and simple options).  What has struck me though is what is missing from option three.  The current test and the second option within the consultation document both include situations where the Data Controller ought to have known that there was a risk that the contravention would occur and that such a contravention was of a kind likely to cause substantial damage or substantial distress but failed to take reasonable steps to prevent it.  However, this appears to be missing from the third option as expressed within the consultation document.

This apparent omission concerns me.  It creates a defence where someone can demonstrate that they didn’t know that there was a risk the contravention would occur even when it is apparent to all and sundry that they really should have known there was a risk.  It basically excuses negligence.  It allows a completely unreasonable situation to avoid the regulatory sanction of a MPN.

This seems like a glaring omission to me and it’s something I’ll certainly be thinking about the possible ramifications of in more detail before submitting a response to the DCMS.  I thought it was an interesting point that was worth raising in a blog.

The DCMS consultation can be found here [pdf] and the deadline for responses to be received by the DCMS is 7 December 2014.

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