The Information Commissioner has recently served two Monetary Penalty Notices (“MPNs”) that are worthy of some note. They were both issued for breaches which occurred prior to 25 May 2018 and are therefore both under the Data Protection Act 1998. This means that the maximum penalty in both cases was £500,000, rather than the larger penalties under the General Data Protection Regulation.
The first MPN [pdf] of the two MPNs that will be discussed in this blog was served on True Visions Productions (“TVP”) in connection with filming undertaken in a maternity unit operated by Cambridge University Hospitals NHS Foundation Trust (“CUH”).
Between July 2017 and 29 November 2019 TVP had placed static CCTV-style cameras with audio recording capabilities within three out of the four assessment rooms at the maternity unit. This was to gather footage for possible use in a television documentary on still births. The Commissioner accepted that there was a public interest in documentaries of this nature; however, she found that TVP had breach the first data protection principle in Schedule 1 to the Data Protection Act 1998.
TVP had not done enough to ensure that they had the explicate consent of those being filmed and there appeared to be no way for CUH staff to turn the cameras off. Therefore, if anyone did not wish to be filmed they would need to be seen in the one room without cameras; if that room was unavailable then the patient would have no choice but to be filmed. The fact that no human had access to the footage without first having the consent of the patient was insufficient: the recording and temporary storage of the footage was processing of personal data and would have required the Schedule 3 condition of explicate consent. Very little was done to bring the filming to the attention of patients; CUH staff were only required to answer questions if asked and there were notices placed in the premises along with information on tables; however, these were inadequate. TVP was served with a MPN in the amount of £120,000.
The second MPN of note is one served on Bounty (UK) Ltd in the amount of £400,000 [pdf]. Bounty UK gives itself the description of being a pregnancy and parenting support club. It provides information and markets services (including offers) to parents at different stages from pre-conception to pre-school. As part of this it distributes packs to new parents. The company also operates as a data brokering service and had previously also supplied data to third parties for the purpose of direct marketing by electronic means (although this apparently ended on 30 April 2018). Bounty collected personal data for the purpose of registering new members and did so in a number of ways, including directly from new mothers at their hospital bedsides.
Bounty had shared personal data with a range of organisations including a credit reference agency, a marketing and profiling agency and a telecommunications company; all for the purposes of direct marketing by electronic means. This related to about 14,300,000 unique individuals. Each record could be shared on multiple occasions. This was, apparently, all done on the basis that Bounty had obtained consent from the data subjects concerned.
The Commissioner found that Bounty had failed to comply with the fairness requirement within the first data protection principle in Schedule 1 to the Data Protection Act 1998. Bounty had not been transparent enough in providing information about the purposes for which personal data would be used. Bounty failed to process personal data fairly because they did not adhere to individual’s reasonable expectations of how their personal data would be used.
The consent apparently obtained by Bounty did not meet the requirements of the Data Protection Act 1998; it was neither specific nor informed.
Of course, both Bounty (UK) Limited and TVP have a right of appeal against the MPNs issued to them (both in terms of the decision to impose a penalty and the amount of that penalty). It remains to be seen whether either will seek to appeal to the First-Tier Tribunal.
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