The UK's Data Protection Act turned ten years old on Wednesday amid calls to either update the legislation or enforce the rules it established.
The DPA was created in 1998 as a means to impose checks on how business and government handles personal information. Widespread data loss by organisations, most graphically illustrated by last year's HMRC data loss debacle, has illustrated shortcomings in the enforcement of the law that have only very recently been partially addressed.
In addition, the law predates the ubiquitous use of data mining techniques in the private sector as well as plans by the UK government to impose a ID card regime on UK citizens, to quote but two examples.
Jamie Cowper, marketing director EMEA at data protection firm PGP, said that the increased amount of data handled by organisations since the act was enacted means that many are inadvertently falling foul of the law. "I’d be surprised if nearly all companies aren’t in some way contravening the Act as it currently stands, whether they realise it or not," he said.
Dai Davis, a partner at commercial solicitors Brooke North, agreed that many firms routinely breach principles established by the law when they outsource data processing to India. "The DPA, at least up until very recently, is 'mostly harmless'," he said. "Few organisations, outside of the financial service industry, have much need to consult on it. It's the culture around the law rather than the Act itself that needs reforming. The UK does not have the same data protection culture as, for example, Germany.
"Data is more valuable now than it was ten years ago so the commercial impetus to breach data protection rules is stronger."
According to Cowper, the DPA helped to raise awareness about how consumers' personal information is used - and sometimes abused - by organisations but has arguably become outdated over time. Few organisations have ever been hauled over the coals for breaching data protection rules. For instance, data protection watchdogs need to request permission for inspections before acting, giving organisations suspected of mishandling data a chance to clean up their act, he said.
"For the DPA to be more than a symbolic reminder that companies should safeguard and control the data in their possession, it needs to be given much sharper teeth," Cowper concluded.
Compliance with the DPA is enforced by an independent government body, the Information Commissioner's Office (ICO), which issues guidance on how companies can maintain compliance with the DPA.
Davis explained that changes introduced in May made breaches of any of the eight data protection principles established by the law a criminal offence. "For the last ten years the act has mostly been a sop. Even over the next ten years I don't think we'll see many prosecutions, except occasional action to make an example because the Information Commissioner's Office doesn't have the funds or resources to pursue people through the courts."
He added that the law had many ambiguities - such as whether or not employers are entitled to monitor their workers - that are "never likely" to be resolved.
Speaking at the launch of his annual report on Tuesday, Information Commissioner Richard Thomas said his office was serving enforcement notices against HMRC and the MoD following recent well-publicised data breaches at both organisations. The notices require both organisations to supply reports explaining in detail what steps they are taking to achieve compliance with the Act.
The ICO report (pdf) said the body had received 24,851 "enquiries and complaints" concerning personal information during 2007/8. These reports resulted in the prosecution of 11 individuals and organisations for breaches to data protection rules over the last 12 months, it said. ®