Calls by the Information Commissioner for organisations to stop hiding behind the Data Protection Act (DPA) fell on deaf ears this week as Marks and Spencers insisted on a seven-year-old giving official permission before an operator could talk to his mum.
The Information Commissioner’s initiative was timed to coincide with the start of Stupid Aid Week (1-5th September). It aimed to highlight common misunderstandings amongst organisations such as the belief that data protection stops them giving out any personal information or prevents them from dealing with certain types of enquiries.
This follows earlier initiatives, debunking various myths about what the DPA required organisations to do. Commonly cited examples of data protection “duck outs” include parents not being allowed to take photos of their child at a nativity play; teachers unable to promote the successes of pupils in the local media and priests prevented from praying for an ill person by name during mass.
A pity that Marks and Spencer doesn’t appear to have noticed. Instead, Jacob Hunter-Lamb’s mother, Debbie, sat and fumed as a call centre operator first demanded that the seven-year-old come on to the phone and identify himself in person – and then had to wait even longer, as the same operator attempted to elicit Jacob’s consent before talking with his mother.
"The whole thing was just so bizarre," said 33-year-old Debbie Lamb, of Lincoln.
The story began when Jacob’s aunt gave him a superman outfit for his birthday. Tearing open the package, Jacob was disappointed to discover that the belt – essential to keeping his super-trousers aloft - was missing.
His mother rang Marks and Spencer’s customer helpline – but instead of a quick chat to resolve the problem she found herself plunged into farce as the call handler insisted he could only speak to Jacob because of 'data protection laws'.
The puzzled schoolboy was then led, haltingly, through the standard procedures designed to confirm his identity. The task almost ground to a halt when the operator asked for his postcode.
As his mother explained: "He doesn't get many phone calls and nobody had ever asked him for his postcode before. It's never featured in his little world."
Finally, after much prompting, he agreed that his mother was entitled to handle his business dealings, and almost normal service was restored. Marks and Spencer have since apologised, putting the episode down to 'human error' – and Jacob has benefitted to the tune of a free Hulk outfit.
The Information Commissioner's Office was less forgiving - perhaps it is still smarting from the Government’s refusal, earlier this year, to give it its very own Superman outfit. A spokesman for the ICO said: “Whilst it is right for organisations to be careful before releasing personal information, this case demonstrates an absence of common sense. In the circumstances it was obvious that the seven-year-old child would not have ordered the Superman suit himself. Further, M&S were not being asked to release any personal information. They were simply being told that a yellow belt was missing from the order.
"The DPA gives us all important rights, requiring organisations to keep our personal information accurate, up-to-date and secure. Misuse of the Act has the potential to devalue it and confuse individuals."
Whilst episodes like this are always good for a giggle, they do highlight serious issues over the way in which organisations use the DPA: a preference for “playing safe” is too often used to block public access to data that should not be blocked.
A variant on this problem was highlighted earlier this summer by Professor Ross Anderson, Chairman of the Foundation for Information Policy Research. In a report for the Information Commissioner on Children’s Databases, he notes the Gillick precedent. This establishes that a child’s parents should normally be involved in matters of consent, but exceptionally, “the child may exercise the consent function to the exclusion of the parent if he or she insists on it and has the maturity to understand the consequences”.
However, according to Professor Anderson, “This has been routinely turned into a principle that anyone over 13 can consent to sharing sensitive personal information without the involvement of their parents. In some circumstances the consent is obtained coercively, with implied threats of loss of access to services. This is unlawful.”
Nonetheless, it is an approach increasingly adopted by government departments – and used as justification for excluding parents from significant decisions about the processing of their children’s data.
This is a murky area – a goldmine for lawyers – but as the various government initiatives in respect of children’s data move forward over the next 12 months, expect to hear a lot more about it. ®