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BPAS decision to pay data fine highlights unfairness of ICO Discount Procedure

23 April 2014

It is reported that the British Pregnancy Advisory Service (BPAS) will not after all appeal a £200,000 fine imposed by the Information Commissioner’s Office after its website was hacked and the details of 10,000 people were accessed illegally.

(http://www.thirdsector.co.uk/news/1291069/british-pregnancy-advisory-service-will-not-appeal-against-fine-security-flaw ). Instead, BPAS has paid the fine less a 20% “early payment discount”, thus costing it only £160,000. BPAS has reportedly sent a letter to the ICO complaining about the way in which the ICO’s investigation was carried out.

The fine was imposed by the ICO because BPAS was deemed not to have had suitable data security measures in place, and because it could not justify the retention of this data, data it says it did not know it had.

From the report it is clear three things seem to have influenced BPAS’s decision not to appeal despite strident earlier statements that it would. First, the perception that BPAS would not receive a fair hearing in the appeal process based apparently on its experiences in the ICO investigation. Second, the cost of an appeal. Third that by appealing it would immediately lose the 20% discount, here worth £40,000.

The first of these reasons can be readily disposed of and is frankly very hard to understand. The appellate tribunal is the First Tier (Information Rights) Tribunal. This is an independent and impartial tribunal. It has nothing to do with the ICO. That tribunal is quite willing to overturn large fines imposed by the ICO, as it demonstrated in the Scottish Borders data appeal, in which we acted for the successful appellant against a £250,000 fine and later in the Niebel appeal against a £300,000 fine for spam texts.

As to cost, inevitably some expense is involved in any appeal but two things should be remembered. First, an appellant can elect to have the appeal process carried out as an entirely paper based exercise using written submissions. Second, and even as a procedure involving oral argument, the Information Rights Tribunal’s general rule is that it does not make any awards of costs against an unsuccessful party unless the appeal is entirely without merit and strays into wasted costs territory. In our opinion the BPAS appeal would not have risked an award of costs.

However we do have considerable sympathy with BPAS in respect of the ICO’s “early payment discount”. In our opinion and as we argued in the Scottish Borders appeal, this “discount” is no more or less than an unfair and illegal fetter on the right to an appeal. Here, the appellant stood to lose £40,000 as soon as it marked an appeal. This sort of figure was plainly likely to weigh heavily upon a charity, and would have been a powerful disincentive against appealing. As the Scottish Borders appeal was allowed without the need to consider these points, the most authoritative ruling to date remains the Central London appeal in which the Upper Tier tribunal regrettably compared Monetary Penalty Notices early payment discounts to parking ticket discounts. Once again the Article 6 point (guaranteeing access to an independent and impartial tribunal when deciding civil and criminal issues) was not considered; indeed it was not even advanced. The ICO accepts that it is not independent and impartial and that it requires the Tribunal to ensure Article 6 compliance. Comparison has also been made with the discount offered by the FCA but this discount is offered following agreement between the regulated body and the FCA about the ‘offence’ and the fine. In the same way, criminal courts discount sentences on the basis of an early plea.

The “early payment discount” and the loss of the discount on appeal places potential appellants in an invidious position. The matter is need of urgent consideration by a court.

For further information please contact Paul MotionLaura Irvine or Lindsay Urquhart on T: 0131 222 2939 or email us at datadefence@bto.co.uk

 

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