UK: Getting Tough On Data Crime

Last Updated: 15 February 2007
Article by Chris Hawkins

The Government is cracking down on theft of personal information. For the first time, people who sell or deliberately misuse others’ personal data could face a prison sentence of up to two years.

The Government has been increasingly concerned about an apparent growth in the trade in personal data, which threatens to undermine its strategy to facilitate greater data-sharing within the public sector. According to Lord Falconer, Secretary of State for Constitutional Affairs and Lord Chancellor, "Greater data sharing within the public sector has the potential to be hugely beneficial to the public and is wholly compatible with proper respect for individuals’ privacy. One of the essential ways of maintaining that compatibility is to ensure the security and integrity of personal data once it has been shared."1

At present, offenders are liable to a fine of a maximum of £5,000 if convicted summarily in a Magistrate’s Court, and an unlimited fine if convicted on indictment in a Crown Court (section 60, Data Protection Act 1998 (DPA)). The Information Commissioner (ICO) has highlighted that these penalties are not a strong enough deterrent:

  • In May 2006, the ICO presented a report to both Houses of Parliament in which it criticised the fact that prosecutions brought under the DPA have generally resulted in low penalties: either minimum fines or conditional discharges. It recommended the introduction of a custodial sentence for unlawfully trading in confidential private information to "discourage this undercover market and to send out a clear signal that obtaining personal information unlawfully is a serious crime". 2
  • In December 2006, the ICO followed this up with a new report to Parliament.3 The report contained an update on reactions to the earlier report which revealed the extent of unlawful trade in confidential personal information and described the progress being made to halt such trade. It also included a list of names of some of the UK’s newspapers and magazines discovered to have bought people’s personal information in search of a story.

As a result, the Department for Constitutional Affairs (DCA) initiated a public consultation. The response showed strong support for custodial sentences, with the notable exception of the newspapers, which argued against on the basis that unlimited fines in the Crown Court were adequate and that the imposition of custodial sentences would be incompatible with the European Convention on Human Rights (ECHR). However, the Government concluded that the increased penalties were necessary to protect people’s rights and any interference with journalists’ freedom of expression (Article 10 of the ECHR) would be justified and proportionate.

On the basis of the response to the public consultation, the Government decided that section 60 of the DPA should be amended to allow, in addition to the current fines, judges to sentence convicted offenders to up to two years in prison. The Government will seek to introduce legislation as soon as parliamentary time allows (it is not yet clear when this will be).4

This move is intended to provide a larger deterrent and assure the public. Information Commissioner Richard Thomas has stated that "a custodial sentence will act as a deterrent. People care about their privacy and have a right to expect that their personal details remain secure. Information obtained improperly can cause significant harm and distress."5 However, it remains to be seen whether the courts have the appetite to add data thieves to the growing prison population.

The Government’s toughening stance is a positive development for businesses worried about data misuse by insiders, but it could also inhibit the sharing of personal information in the public and private sectors for fear of committing an offence. Although the consultation document provides reassurance that those who make an error of judgement will not be guilty of an offence, it will ultimately be down to the courts to interpret the new provisions.

According to the DCA, the changes are particularly designed to stop private investigators obtaining information illegally. As the ICO’s report highlights, it will also apply to any newspapers and magazines that are prepared to break the rules to get a story.6 They should note that, increasingly, the courts are prepared to protect privacy with tougher sentences:

  • In December 2006, Kingston Magistrates’ Court sentenced a private detective to 150 hours of community service for knowingly obtaining and selling personal data without the consent of the data controller. The convicted man systematically impersonated individuals in order to obtain their personal information from organisations such as banks and phone companies (known as "blagging"), and then sold the information through his detective agency. This was the first time that such offences were punished by any sanction other than a fine.7
  • On 26 January 2007, the royal editor of the News of the World and a private investigator were jailed (for four and six months respectively) for conspiring to intercept telephone calls without lawful authority. The individuals had used PIN codes associated with mobile phone numbers of royal aides and celebrities to access hundreds of voicemail messages, which they trawled for interesting information. Perhaps as a sign of things to come, the Judge warned that the case was nothing to do with freedom of the press but about "grave, inexcusable and illegal invasion of privacy. Neither journalist or private security consultant are above the law."8

In a separate development, the new Fraud Act (which came into force on 15 January 2007)9 creates an offence of failing to disclose information. As an unlooked-for consequence, data controllers who fail to give a proper data protection notice could, in theory, face up to 10 years in jail. However, the view amongst experts is that jail sentences are unlikely to result from data protection failings.

Footnotes

1 DCA Press Notice
2 What Price Privacy?
3 What Price Privacy Now?
4 Response to the consultation
5 ICO Press Release
6 What Price Privacy Now?
7 ICO Press Release
8 The Register Article
9 The Fraud Act 2006

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.