The report also made clear that the UK will not introduce a
security breach notification law. (See: The
UK does not need a security breach notification law, says
Government, OUT-LAW News, 25/11/2008)
Another report published by the Ministry of Justice yesterday
gave the Information Commissioner's Office (ICO) new inspection
powers, though not the powers that the Commissioner had asked for.
It also changed the ICO's funding arrangements which will lead to
increased compliance costs for large businesses. (See: ICO to get powers to audit public bodies without
consent, OUT-LAW News, 25/11/2008)
Response to the data sharing review report
In July, Information Commissioner Richard Thomas and Dr Mark
Walport, a director of the Wellcome Trust, published a report on
data sharing that had been commissioned by the Prime Minister in
October 2007. Their report made recommendations for cultural and
regulatory changes. The Government responded to those
recommendations yesterday.
Data sharing
The Ministry of Justice said in its Response
to the Data Sharing Review Report (28-page / 170KB PDF)
that new laws will be introduced to facilitate data sharing.
"The Government will bring forward primary legislation to place
a statutory duty on the ICO to prepare, publish and review a code
on the sharing of personal data (the Code)," said the report.
The Code will provide guidance on how organisations can share
personal data and promote good practice in the sharing of personal
data.
"A breach of, or compliance with, the Code will be taken into
account by the courts, the Information Tribunal and the ICO
whenever it is relevant to a question arising in legal or
enforcement proceedings," it said.
The report said legislation does not provide a barrier to the
sharing of personal data in most cases. "There are occasions when
the requirement to share data should be put into primary
legislation," it said. "Where this is evident, primary legislation
should be sought as appropriate," it said.
"There will be times, however, when Government will seek to
introduce data sharing arrangements as part of a package of
measures to deliver a policy and a fast-track process would be more
appropriate," it said.
"Government will legislate to create a gateway for data sharing
powers, which will be subject to the Parliamentary Affirmative
Resolution procedure. This will create a more streamlined process,
retaining the element of parliamentary scrutiny to ensure
transparency in data sharing policy and ensuring such power is
proportionate," said the report.
Legislation will give the Secretary of State a power to allow
data sharing without barriers whenever "a robust case" can be
made.
"We intend to bring forward legislation to confer upon the
Secretary of State a power to permit or require the sharing of
personal information between particular persons or bodies, so long
as a robust case can be made to use that power," said the report.
"The power will also be used to simplify the data protection
framework and remove any unnecessary obstacles to data
sharing."
The report also calls for transparency in data sharing. "All
organisations should proactively publish details of their data
sharing practices and schemes," it said.
Civil penalty powers for the ICO
The ICO was recently given new powers to fine companies for
certain breaches of data protection law. The Government said it
hopes to bring these powers into force shortly.
The powers allow the Information Commissioner to issue a civil
monetary penalty for serious breaches of the data protection
principles which are likely to cause substantial damage or
distress.
The powers became part of the Data Protection Act in May, when a
new section 55A was inserted by the Criminal Justice and
Immigration Act of 2008. But some details have still to be
published. Yesterday's report neither confirmed when the powers
will come into force nor set a maximum level for fines.
Instead, the report said only that "the maximum level of
penalties should mirror the existing sanctions available to the
Financial Services Authority, setting high, but proportionate,
maxima related to turnover."
Pinsent Masons and Amberhawk Training are holding an Update
session on 26th January in London where this topic forms part of
the agenda. If you are interested in this event, please
email chris.pounder@amberhawk.com
for a brochure.
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