4 March 2011 by Matthew Miller

Lessons to be learned

At the end of last year, the Information Commissioner’s Office (ICO) imposed 2 hefty fines for serious breaches of the Data Protection Act 1998 (DPA) under powers that came into force earlier in the year. Under those powers, the ICO can now impose a fine of up to £500,000 if (i) a serious contravention of the DPA has occurred which is likely to cause “substantial damage or distress” and (ii) the data controller in question either intentionally breaches the DPA, or knew (or ought to have known) there was a risk that a breach of the DPA would occur, which was likely to cause “substantial damage or distress”, but then failed to take reasonable steps to prevent that breach.

Hertfordshire County Council was fined £100,000 for faxing details of a child sex abuse case to the wrong recipient and, on a separate occasion, sending details of care proceedings to the wrong recipient. A4e, a global provider of employment/training services, was fined £60,000 for the loss of an unencrypted laptop (issued to an employee who was working from home) containing personal data relating to 24,000 people, including data about alleged criminal activity and whether individuals had been victims of crime. Both were fined even though they voluntarily notified their breaches to the ICO. These fines are a useful reminder that (i) failing to encrypt laptops, CD ROMs and other hardware/peripherals is likely to be viewed by the ICO as a breach of the DPA and may lead to a significant fine being imposed and (ii) any voluntary notification of such a breach may be taken into account, but will not be an absolute defence to a fine being imposed.

Meanwhile, last month, Cotswold Geotechnical (Holdings) Ltd was found guilty of corporate manslaughter in the first conviction secured under the Corporate Manslaughter and Corporate Homicide Act 2007, following the death of an employee in September 2008 while working in a trial pit at a building site. The court found that the company had failed to take all reasonable steps to protect the employee from the company’s unsafe system of work in digging unnecessarily dangerous trial pits. When the legislation came into force in April 2008, there was some suggestion it was not designed to prosecute small businesses such as Cotswold – the company’s prosecution is a timely reminder that this is not the case and that it is important for businesses of all sizes to have a health and safety culture and to ensure staff take responsibility for improving health and safety.

Lastly, and on a (much) lighter note, the Office of Fair Trading (OFT) has recently published its final response to the request submitted by the Campaign for Real Ale (CAMRA) for an investigation into the market for the supply of beer to pubs. The OFT initially decided that no investigation was necessary but CAMRA appealed this decision. The OFT has again concluded that no action is needed, having found no evidence of any competition issues that are having a significant adverse impact on consumers in the UK pub sector. The lesson here? Well, if you think you are paying too much for a pint, you probably are, but you might be stuck with it. Have a glass of wine instead.

For any queries please call or email Matthew Miller on 020 7288 4739, matthewmiller@boltburdon.co.uk

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