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[log in to unmask] type="cite">

What incentive does the Commissioner have to bite any harder if he doesn't even get the credit for trying? If they get slapped down, maybe they will stop bothering at all.

 

They have to be proportionate - if an organisation mends its ways, what right does the Commissioner have to go after them unless they don't do it adequately or quickly enough. If your complaint is that the Data Controller in this case has not mended its ways, there's something to be argued about. But if no-one else will have the same problems as you in the future, I think the IC has done precisely what it should do, given its powers and resources.

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From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Tim Trent
Sent: Thu 17 April 2008 10:56
To: [log in to unmask]
Subject: Re: [data-protection] The Chihuahua and the North East Surrey Crematorium

The problem is that no-one is afraid of a chihuahua, even if it;s trying as hard as it can to break the skin in your ankle, it has very small teeth.  If it starts to gnaw your leg is your first reaction fear of hysterical laughter?

"Awww, look.  The sweet little thing is trying to bite me."

Tim Turner wrote:

[log in to unmask] type="cite">

Given that the Commissioner has a reasonable record of prosecuting non-notifiers who refuse to notify, is it really worth the money and the court time to prosecute the Crematorium if they are shaping up now?

 

Regardless of how impressive a "strict liability offence" sounds, in practice, it's not the end of the world if someone doesn't notify. If an organisation refuses to take the Commissioner's advice, that's a problem. If they refuse to notify when someone points it out to them, that's a problem. But if the Commissioner's Office, with what everyone acknowledges is a paltry budget, achieves compliance without wielding the big stick, then that's a good thing, isn't it?

 

In the recent past, the Chihuahua has actually been biting a few legs - that's a lot better than what went before.

 

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From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Tim Trent
Sent: Thu 17 April 2008 10:35
To: [log in to unmask]
Subject: Re: [data-protection] The Chihuahua and the North East Surrey Crematorium

Their attitude to strict liability offences seems to be "They have put it right, so we don't (need to) care".  But this has been law since 19978 and implemented fully since 2000.  And that means, to me, that they are not doing their duty, period.

I'm not letting this deter me form my county court action against the crematorium, however.  We do not yet have a date for the hearing, and I think the district judge is trying to work out in advance what liability exists.

As for the chihuahua, I think my only real recourse is to my MP.  Something tells me that a judicial review is a thing likely to cost me money.

Nigel Roberts wrote:

[log in to unmask] type="cite">I think there are arguments on both sides. I'm entirely unsurprised and more than a little disappointed with the ICO. But I've had similar experiences with the Chihuahua (or chocolate teapot as I have referred to them in the past.

Its no different with the police and low-level anti-social behaviour . they direct their resources to the murders and politically sensitive offences and fail to investigate low level frauds, finding any excuse.

You only have to look at the statements made when the media asked them (after my cour case against an unsolicited emailer) and they were caught (IMO) a little on the back foot when asked why they'd never gone after spammers.

But I am totally surprised about their unconcern that an organisation has committed a strict liability offence by failing to notify as required by law. I suspect that technically (in practice noone would do it) the ICO is open to JR since they are refusing to exercise their core regulatory functions (there's a phrase!) irrationally!


Nigel

Tim Trent wrote:

I promised you all an update.

You may remember that I complained to the UKIC on the grounds that the NES Crematorium had obtained my data unfairly and had not processed it in accordance with my rights.  Their defence has always been "You signed one of our forms and failed to opt out, so ya boo, sucks to you!"  My complaint is based upon the reasonable expectation at the time of booking the funeral that all the paperwork was paperwork for the undertaker, that there as NO expectation of marketing except from the undertaker, and that the crematorium, apart from being exceptionally tasteless, was in breach of the DPA 1998.

Interestingly the crematorium had also not notified under the DPA, and it appears to me not to be an exempt organisation.

The UKIC has emailed me to say "there is no case to answer".

They say:
BEGINS

In this instance we have made an assessment that it is unlikely that any breach of the DPA has occurred in processing your personal data in this way. In terms of mail marketing, individuals should be made aware that their information will be used for this purpose and there should also be an opportunity to either opt-out or object.

The North East Surrey Crematorium satisfied both these criteria, by having an opt-out box available and by agreeing to your request to stop sending marketing materials and processing your data. Further, after making your complaint, the North East Surrey Crematorium considered your objections carefully and made a number of concessions including making the opt-out box more prominent on their paperwork and delaying the period before communication to four weeks.
It is understandable that, at a time of such great stress, you weren’t aware that the relevant paperwork was from the crematorium rather than from the funeral director but I feel, on balance, that this was a responsibility of the funeral director rather than a failing of the crematorium or its paperwork.

On this basis, there is no strong indication that the North East Surrey Crematorium has failed to comply with the DPA* *in this instance. Also, taking your concerns into consideration, they have made some welcome steps in improving their service.

ENDS

We are back to "They have made changes, so there is no problem, is there?  Please go away and stop wasting our time by asking us to do our job."

It seems they do not even care that the organisation had not notified and was thus committing a strict liability offence by processing personal data at all.  I am not high profile like fingerprints at T5, so my compliant can be swept away.

Or am I overreacting?  You be the judge.  Me, I want an Information Rottweiler.  We have an Information Chihuahua.

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