A contravention of s4(4) doesn't have to involve sensitive personal data for a MPN to be issued. And a section 4(4) breach does not have to involve actual disclosure of personal data (it simply creates a duty of a data controller to comply with the data protection principles).
For example, excessive processing by a controller (let's say a local authority) in the form of covert CCTV filming of people in a changing room at a gym would be of a kind likely to cause substantial distress, but the people filmed would not be aware of it. (Obviously such filming would be very probably unlawful for other reasons as well).
Jonathan Baines
Legal and Democratic Services
Buckinghamshire County Council
01296 383681
-----Original Message-----
From: Lawrence Serewicz [mailto:[log in to unmask]]
Sent: Friday 24 June 2011 11:38
To: Baines, Jonathan; [log in to unmask]
Subject: RE: [data-protection] Mick Gorril speaks
I may have misunderstood this, but I would think the victim be distressed and damaged once they had been informed that all and sundry had seen their [insert your relevant sensitive information breach topic]. The distress would be caused, I would have thought, at the moment the organisation has to inform the victims that all and sundry have seen their sensitive personal information.
Unless this is occurring in a vacumn (like a reversed super injunction) where the victims of the breach are never told of the breach, they will suffer emotional distress and damage once they are told their sensitive personal information has been disclosed.
Best,
Lawrence
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Baines, Jonathan
Sent: 24 June 2011 10:01
To: [log in to unmask]
Subject: Re: [data-protection] Mick Gorril speaks
In which there is an error:
He refers to "the requirement that a contravention *must* cause substantial damage or distress before a penalty can be imposed. A challenge to this requirement is one of the most likely bases for an appeal".
But the Act says a MPN can be imposed if "the contravention was of a kind *likely* to cause substantial damage or substantial distress". There is a key distinction here, and it may be that he has been misquoted, but it could lead to confusion. You're not going to win an appeal against a MPN on the grounds that "we didn't cause substantial damage or distress", if in fact what you did was likely to have done.
Jonathan Baines
Legal and Democratic Services
Buckinghamshire County Council
01296 383681
-----Original Message-----
From: This list is for those interested in Data Protection issues [mailto:[log in to unmask]] On Behalf Of Ibrahim Hasan
Sent: Friday 24 June 2011 08:42
To: [log in to unmask]
Subject: [data-protection] Mick Gorril speaks
How to avoid regulatory action by the ICO - ex head of enforcement speaks:
http://www.computerweekly.com/Articles/2011/06/23/247091/How-to-avoid-regulatory-action-by-the-ICO.htm
Regards
Ibrahim Hasan
Solicitor and Director
Act Now Training Limited
www.actnow.org.uk
www.informationlaw.org.uk
http://twitter.com/ActNowTraining
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