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InfoLaw Update - April 2013

In this month's issue of InfoLaw, Natalie Ruane shares new guidance and updates from the Information Comissioners Office (ICO) as well as examining the penalties being issued by the ICO for breaches of the law in relation to cold-calling.

New guidance and updates from the ICO

The ICO has published new guidance on how the government policy (Section 35) exemptions work to protect good government and ensure a safe place for policy making.

The guidance covers the scope for the exemptions for information relating to formulation or development of government policy, ministerial communications, law officers’ advice, or the operation of ministerial private offices.  It also advises on common public interest arguments such as what constitutes a safe space, chilling effect and collective responsibility. 

It includes a number of examples of cases where the Commissioner or Tribunal have upheld the use of section 35 as well as some where it was rejected.

Last month the ICO also published new guidance on:

1. Information in the public domain: this guidance sets out the issues to consider if the requested information, or some related information, is already publically available.

2. Personal data of both a requestor and others; this guidance explains how to deal with a request for information which include the personal data of several data subjects, one of which is the requestor.

The ICO has also updated their guidance on information about the deceased.  This guidance explains how to deal with requests for information about a deceased person.

ICO website moved on 26 March 2013 the ICO’s website moved from http://www.ico.gov.uk to www.ico.org.uk.  Anyone attempting to find the website through the old address will, for the time being, be relocated to the new location.

Fined £90,000 for Cold-calling

DM Design, based in Scotland drew almost 2,000 complaints to the Information Commissioner’s Office and the Telephone Preference Service.  The fine they received for consistently failing to check if individuals had opted out of receiving marketing calls was the first issued in the UK.  The Information Commissioner said other firms faced complaints and more fines would follow.  DM Design was found to have responded to just a handful of the complaints that it had received.  In one incident an employee had threatened to “continue to call at more inconvenient times like Sunday lunchtime”. 

The ICO has said that it is intending to impose significant penalties over breaches of the law with a final decision on two more companies coming in the next few weeks. 

A further ten companies are subject to ongoing investigation for cold-calling and sending spam text messages.  The Information Commissioner said “this menace will not be tolerated”. He felt that the company had showed a clear disregard for the law and a terrible attitude towards the people whose day they were disturbing. He did not consider that this fine would be an isolated penalty and that he had every intention of taking further enforcement actions against other companies.  He thanked the public for providing information on these types of issues which have assisted his investigation team in identifying the companies making the calls. 

It is clear from the this and the ICO’s stance  that you need to check your marketing policy, check the consents that you have and also check very carefully the telephone preference service before making any unsolicited calls or sending spam text messages.  If you cannot show that you have proper consent or that somebody has not asked to be removed from your system then you face, not just an investigation by the ICO, but also the risk of, as can be seen from this story, a significant fine.

About the author

Natalie Ruane profile photo

Natalie Ruane

Natalie is a Partner and leads the Employment Law & HR team and specialises in education.

Published: Tuesday 30th April 2013
Categorised: Information Law

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