Phil,
Thanks. I am not sure I would go so far as theft. I am strict, but crikey, I am not that strict! That would really put the frighteners on the recipient. :)
My view is that the consent and intent of the DC are paramount in a s.55.
If a mistake indicates consent, then perhaps the recipient can argue they have it and no longer need to return it. (9/10ths and all that). However, I would suggest that if they have someone's PD in error, they refuse to return it or destroy it as asked and the originating DC has asked that they do this, I would be surprised that s.36 would stand up.
I would further suggest that postal laws might come into play (at least in my example) where someone has opened someone else's post.
I would also suggest that the data subject might have grounds to ask the recipient to return their personal data as they have certainly not consent to their obtaining it and that would have a great impact on whether the person who has obtained the information incorrectly is processing it for their personal or household use. They have no use for the data, aside from retaining it, which would stretch for their affairs.
Best,
Lawrence
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Phil Bradshaw
Sent: 19 February 2015 13:51
To: [log in to unmask]
Subject: Re: s55 "obtaining"
I Must disagree with Lawrence here. The knowledge, recklessness and consent of the DC must be judged at the time of the procuring or obtaining. Not at the later time of retention.
On the other hand it may well be a theft under s1 of the Theft Act as appropriation there includes "Any assumption by a person of the rights of an owner amounts to an appropriation, and this includes, where he has come by the property (innocently or not) without stealing it" s3, and dishonesty can be judged at the time of appropriation (s2). However it is 30+ years since I studied criminal law and under s2 you have to take into account belief ...
In fact s3 Theft Act shows the flaw in Lawrence view. If you want to extend the meaning of obtain you would need an equivalent in s55 DPA
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