The consultation, Civil Monetary Penalties: Setting the
maximum penalty, asks just one question: whether the proposed
maximum fine will provide the ICO with a proportionate sanction to
impose on those seriously contravening the data protection
principles.
Justice Minister, Michael Wills, said: "We want to ensure that
the Information Commissioner's Office has the powers it needs and
is able to impose robust penalties on those who commit serious
breaches of data protection principles."
The Government decided not to follow the approach of other
regulators that have the power to impose a penalty up to 10% of an
organisation’s turnover.
"Following discussion with the ICO and consideration of the
greater administrative burden involved in operating a
turnover-based system, we are consulting only on a fixed maximum
amount," says the consultation paper. "However, we consider it
desirable that the maximum amount of the penalty should not be
higher than the equivalent of 10% of the highest annual turnover of
a small company."
The power to impose a civil monetary penalty on data controllers
was created by
section 144 of the Criminal Justice and Immigration Act 2008,
which amends the Data Protection Act of 1988. The power is expected
to be in force next April, according to the ICO.
The penalties can only be imposed when certain criteria are
met.
- There has been a "serious contravention" of one of the Act's
eight principles; and
- It has to have been of a kind likely to cause substantial
damage or substantial distress and either:
- the contravention was deliberate; or
- the data controller knew or ought to have known that there was
a risk that the contravention would occur, and that such a
contravention would be of a kind likely to cause substantial damage
or substantial distress, but failed to take reasonable steps to
prevent the contravention.
According to the Ministry of Justice, the ICO will exercise its
discretion to assess the appropriate level of any penalty it
imposes and will publish detailed guidance setting out the criteria
it will use and circumstances it will take into consideration.
The consultation closes on 21st December 2009.
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