Consultation on the introduction of custodial sentences for the knowing or reckless use of personal data
15 Oct 2009
The Ministry of Justice has now published its consultation paper entitled "Knowing or reckless misuse of personal data – introducing custodial sentences."
The consultation relates to the proposed bringing into force of amendments to the Data Protection Act contained in the 2008 Criminal Justice and Immigration Act and seeks the views of interested individuals and organisations on the proposed increase in the maximum penalties available to the courts for those guilty of offences under section 55 of the Data Protection Act 1998 (DPA) and the introduction of a new so called "press" defence .
Section 55 DPA makes it an offence knowingly or recklessly to obtain, disclose, sell or procure the disclosure of personal data without the consent of the data controller. The proposed changes mean that those convicted of this offence could be imprisoned for up to two years on indictment, and up to twelve months on summary conviction. This is in addition to the existing fines (currently up to £5,000 on summary conviction or unlimited fines on indictment) which are available to the courts.
The consultation follows calls by the Information Commissioner in September of this year for the prompt introduction of prison sentences to ensure effective sanctions are available to the courts in cases involving the illegal trade in personal data for financial gain.
The proposals have given rise to fears in parts of the media that the threat of custodial sentences will have the effect of inhibiting investigative journalism. However, the Government claims that it has "no intention of curtailing responsible investigative journalism which can be essential for the effective scrutiny and accountability of the powerful". The consultation paper invites views on the proposed introduction of a new defence to the existing section 55 offence which would apply to a person who commits the offence while processing personal data with a view to publication for the purposes of journalism, art or literature and who acts in the reasonable belief that in the particular circumstances their actions are justified as being in the public interest.
Consultation on the proposals is open to the public and all interested parties and will remain open until 10th January next year. Subject to the outcome of consultation, the Government intends to bring the resulting powers into force during April 2010.
The consultation document is available at http://www.justice.gov.uk/consultations/misuse-personal-data.htm.
To discuss the implications of this on your organisation's own systems, contact Heledd Lloyd-Jones on 029 2038 5914.
