Privacy watchdog fails on fines for data protection breaches

More than 2.8 million pounds uncollected in annual fines by ICO

Koala asleep on tree

ICO and fines

Britain’s personal data watchdog has failed to collect millions in fines for breaches of the Data Protection Act (DPA).

The Information Commissioners Officer (ICO) is responsible for enforcing the DPA and new GDPR regulations, which come into force today (25 May 2018). Figures obtained through Freedom of Information requests by me show:

The total sum of fines issued under the Data Protection Act 1998 (DPA) and Privacy and Electronic Communications (EC Directive) Regulations 2003 (PECR) for each of the last three financial years is:

2015-16 – £2,529,250

2016-17- £3,556,100

2017-18 – £4,809,700

But how much of this was actually received?

2015-16 – £748,100

2016-17 – £1,938,600

2017-18 – £1,923,655

So, in the most recent year, for example the ICO has failed to collect more than 60% of the fines it has imposed, for a total of more than 2.8 million pounds.

Whilst the total of fines has been increasing, the collection rate has been decreasing. The ICO is keen to point out that there are several factors that have an impact on the difference between the total amount fined and the total amount paid for each financial year.

GDPR means more cash for the ICO

According to the law, companies and other organisations must register with the ICO and pay an annual fee for the privilege. I uncovered how the ICO will benefit financially from the new GDPR rules. Last year (2017/18) £21,299,976 was raised in data protection fees income. The projected data protection fee income for this year (i.e. financial year 2018/19) is £32,341,250. This represents an uplift of £11,041,274.

74% of the ICO’s income will be spent on salaries, that’s a massive £24,983,045 for around 400 staff!

I contacted the 31 other countries bound by the EU law regarding the data protection registration and asked them if they charged a fee. 15 responded to say that they did not.

Support for businesses from the ICO lacking

Although generally good news for consumers (Ten ways GDPR will help consumers) the ICO faces widespread criticism of its handling of the new GDPR legislation. Despite the massive hike in projected income and increase in staff, big business and sole traders alike are frustrated by the lack of support and consistent advice on the new data privacy law.

old fashioned dusty switchboardWe are all seeing an increase of emails requesting consent to keep recipients on their mailing list which are unnecessary where they already have our permission. Laura Light, blogger at savings4savvymums is one of many sole traders who is frustrated by all the conflicting advice. “I was on the phone last week asking about opt-ins to then be told by a different advisor the info I was told was wrong! They need to get their facts straight and stick to them. How on earth can anyone be expected to get it right when the ICO doesn’t even know what’s right?”

Naomi Willis was left on hold for 1 hour 4o minutes before being cut off and then again for nearly two hours when she rung the ICO. To say nothing of the ICO website being down for most of the day yesterday!

Why is a registration fee for data protection needed?

Naomi from Skint Dad, a small business, questions the need for a fee: “The whole idea of GDPR is that everyone should be doing it. I don’t therefore understand why most need to pay a fee to the ICO. Having a fee is just putting people off from following the new legislation. It’s not like the money has gone on any support!”

And as mentioned above – other countries undertaking the same work are not charging. Why?

Jumping on the GDPR bandwagon

There appears to be an increase in companies seeking to capitalise on the confusion too. Naomi has noticed that people with no legal background who appear to have read (some of) the guidelines are offering very expensive advice to people and organisations who are wrongly panicking about being fined. Willis worries for next week and beyond “I think it will be worse from next Tuesday as these people will become parasites, just looking at websites with no privacy policy, then trying to hard sell them generic policies that aren’t fit for purpose.”

GDPR causing unnecessary costs for small organisations

The cost of GDPR is hitting business across the board, especially in the not-for-profit sector. Already strapped for cash schools and local authorities must spend thousands of pounds on privacy staff and external advice but are not being given any extra funding to do so.

While most privacy policies are written in dry legal language, some small businesses have taken a novel approach to these documents. For example, the website WritersHQ has created a witty explanation for every area of GDPR full of choice language in its Privacy Policy. The popularity of the policy, which has been shared widely on social media, is perhaps a reflection of how small businesses feel about GDPR! Marianne Chua is a wedding photographer whose Privacy Policy takes a humorous sarcastic slant. For example “I’m happy to show you the information I have on you, and unsurprisingly it’ll probably be exactly the things you’ve told me because sadly I am neither a spy nor a mind reader.”

ICO and protection irony

ICO is making sole traders postal addresses public! For most sole traders this is their home address making them vulnerable to a number of issues. The ICO does not have to make these home addresses public. But, the ICO said ““Even though it is no longer a legal requirement under the GDPR, the ICO will continue to publish a register of data controllers because we recognise there is a public interest in transparency and accessibility. It is important that data subjects have a clear way to contact data controllers and to exercise their legal rights. Being a data controller represents responsibilities, one of which is to be easily accessible to data subjects. We will be publishing the postal addresses of data controllers, including sole traders. We will not be asking for consent to do so but we will be advising them that they can provide a PO Box address instead if they wish to do so.”

ICO and glass houses..

I think Naomi sums it up perfectly. “Information we need to provide must be “concise, transparent, intelligible and easily accessible” but the ICO seem to be having a hard job of doing this themselves! What I’ve seen from them is long winded, full of holes, late and the information on their site goes around in circles, let alone having a chance to speak to a human for support!”

Time perhaps for the ICO to get its own house in order before it starts looking at fining businesses?

Someone shouting into tin can with string. Text privacy watchdog fails on fines for data protection breaches and support on GDPR

[1] A spokesperson for the ICO said that "If the Commissioner receives full payment of the monetary penalty within 28 calendar days of the notice being sent, the Commissioner will reduce the monetary penalty by 20%.

Secondly, ongoing or successful appeals against a CMP will delay, or negate, the amount of CMP to be paid. In some cases, appeals to the FTT can lead to the reduction in the amount organisations are required to repay.

In addition, each monetary penalty notice issued will define a timeframe in which the CMP should be paid, which will be a period of at least 28 calendar days beginning the first day after the monetary penalty notice has been served. Therefore, in more recent cases, although a monetary penalty notice has been issued, payment may not yet have been made.”

Preventing and complaining about nuisance calls and Ofcom’s record fine

Ofcom fines companies

Record fine for firm behind nearly 100 million nuisance calls

A company behind 99.5million nuisance calls has been fined a record £400,000 by the Information Commissioner’s Office (ICO).

Keurboom Communications Ltd, a company behind 99.5 million nuisance calls has been issued the ICO’s highest ever nuisance calls fine after more than 1,000 people complained about recorded (also known as automated – calls). £400,000

The calls, made over an 18 month period, related to a wide range of subjects including road traffic accident claims and PPI compensation. Some people received repeat calls, sometimes on the same day and during unsociable hours. The company also hid its identity, making it harder for people to complain.

Companies can only make automated marketing calls to people if they have their specific consent. Keurboom did not have consent so was in breach of the law.

Steve Eckerlsey, Head of Enforcement at the ICO said: “Keurboom showed scant regard for the rules, causing upset and distress to people unfortunate enough to be on the receiving end of one its 100million calls. “The unprecedented scale of its campaign and Keurboom’s failure to co-operate with our investigation has resulted in the largest fine issued by the Information Commissioner for nuisance calls.”

During the investigation, the ICO issued seven information notices ordering the company, which is registered in Dunstable, Bedfordshire, to provide information to the regulator. When it failed to comply, Keurboom Communications Ltd and its director, Gregory Rudd, were prosecuted and fined at Luton Magistrates’ Court in April 2016.

Following the ICO’s investigation, Keurboom Communications Ltd has been placed in voluntary liquidation. The ICO is committed to recovering the fine by working with the liquidator and insolvency practitioners.

The ICO’s powers will be further strengthened when the government introduces a new law allowing it to fine the company directors behind nuisance call firms. Making directors responsible will stop them avoiding fines by putting their company into liquidation.

In 2016/17, the ICO had its busiest year for nuisance calls issuing 23 companies a total of £1.923 million for nuisance marketing.

The previous record nuisance call fine was in February 2016, when the ICO fined Prodial, a lead generation company, £350,000 for making 46 million nuisance calls.

So what can you do to prevent and deal with nuisance calls?

Sign up for TPS. The Telephone Preference Service. You can register both your landline and mobile numbers. It doesn’t stop them all but it certainly reduces it. As for the ones it doesn’t stop, report them. It is the law that companies must check names and numbers against the TPS register so they are breaking the law if you are registered and they contact you. Allow 28 days for it to be all registered. TPS is not able to enforce the law or fine, but does pass the information onto the Information Commissioner’s Office (ICO).

If you have consented to receive marketing calls then you will still get these even if you are registered with TPS. Watch out for comparison and other sites and make sure that box is unchecked for wanting marketing emails.

For silent and abandoned calls, (frequently caused by automated systems dropping calls as soon as one is answered) contact Ofcom. Abandoned calls are where you hear a recorded message and there is a standard form online to report these calls. Ofcom won’t take action on individual complaints, however, once it gets a large number regarding the same company it will take action. In 2013 it fined Talk Talk £750,000 for an excessive number of silent and abandoned calls. So report these kinds of calls. The form is simple
and quick to fill out.

For unwanted marketing calls, contact the Information Commissioner’s Office (ICO). In May 2011 it was given powers to impose a fine up to £500,000 on companies who break the rules on unsolicited texts and phone calls.