Government Outlines Increased Penalties For Data Misuse

The Government has outlined its plans to jail people convicted of trading illegally in personal data or knowingly or recklessly disclosing it. Under the plans the jail terms would be introduced next April.

Privacy regulator the Information Commissioner's Office (ICO) has long campaigned for an increase in penalties for breaches of the Data Protection Act (DPA). The Government has agreed to back the proposal and has launched a consultation on the issue.

"The custodial sentences should be set at the maximum available under the power (i.e. twelve months’ imprisonment on summary conviction and two years’ imprisonment on conviction on indictment)," says the consultation.

The Government also proposes to introduce a new defence to the offences for which jail terms are being introduced. People who are engaged in art or journalism can claim exemption from the rule.

"The additional defence for anyone who can show that he was acting for the special purposes (as defined by section 3 of the DPA) with a view to publishing journalistic, literary or artistic material, in the reasonable belief that the obtaining, disclosing or procuring was in the public interest should be introduced alongside the increased penalties," said the consultation.

The Government said that the ICO had been expressing concern about DPA infringements for commercial gain since 2006. "The Information Commissioner’s 2006 Special Report to Parliament 'What Price Privacy? The unlawful trade in confidential personal information' highlighted the corrosive effect of the trade in personal information," said the consultation. "The report detailed how the sums of money those engaged in such transactions can make – up to £120,000 per month in one case. Individuals involved in such a lucrative trade are unlikely be deterred by a fine only."

"At one point this trade appeared to subside. However, the new Information Commissioner has recently called for the introduction of these penalties. The Government has also listened to further concerns from media organisations about the chilling effect which such a penalty would have on legitimate investigative journalism, and created a new defence for those who act for … special purposes," it said.

The Government said that there are some offences related to the misuse of personal information that already carry jail terms, including some in the Identity Cards Act and the Commissioners for Revenue and Customs Act. "However, the DPA is the central piece of legislation which governs how personal data should be processed and we believe it should be this piece of legislation which sets the standards for offences relating to the knowing or reckless misuse of personal data," it said.

"The Government therefore believes it is necessary to introduce the increased penalties available to the courts for three reasons: to provide a greater deterrent to those who seek to knowingly or recklessly obtain, disclose or procure the disclosure of personal data without the consent of the data controller or sell or offer to sell personal data obtained in that way; to provide public reassurance that those who are successfully prosecuted may, depending on the gravity of the offence, be sent to jail; [and] to achieve parity of approach across a number of disparate pieces of legislation which deal with similar types of offences," said the consultation.

The Government plans to introduce the changes in April 2010 at the same time as the ICO's powers are strengthened by the Criminal Justice and Immigration Act.