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ICO’s Consultation on Responding to Data Protection Concerns: An April Fool or Worrying Implications for the Rule of Law?

by informationrightsandwrongs

A guest post by Dr David Erdos, University Lecturer in Law and the Open Society, University of Cambridge
In the run up to Christmas, the Information Commissioner's Office (ICO) published a document entitled “Our new approach to data protection concerns”, which set out on a consultation basis how from 1 April 2014 it intends to deal with the concerns/complaints it receives vis-à-vis the Data Protection Act 1998.
It has been clear for some time that, rather in contrast to how it deals with complaints under the Freedom of Information Act 2000, the ICO’s approach to many of the approximately 40,000 Data Protection complaints it receives has been cursory. The proposals forwarded in the Consultation Document are nevertheless (to my mind at least) rather startling. In sum (and without any April Foolery intended!), the document states that from 1 April, the Office proposes to decide on its own account whether or not to assess the merits of a concern validity sent to it for assessment under the Data Protection framework. A quote on page 6 of the document is particularly enlightening. This states that in the future the ICO will respond to such concerns in the following fashion:

We may make an assessment under section 42 of the DPA where we think this adds value or where the customer has asked us to do so. We may simply offer advice to both parties and ask the organisation to take ownership of their customer or client's concern. We will decide how we can best tackle each concern on a case by case basis. (emphasis added)

(Relatedly, it also seems to be no accident that the consultation is squarely aimed at those who are regulated by the ICO i.e. Data Controllers (indeed all the discrete questions asked could only be answered by them!) even though such a radical proposal obviously has serious implications for Data Subjects as well).
The ICO’s suggested approach is hugely problematic from a rule of law point of view. Section 42 of the Data Protection Act is crystal clear that “any person who is, or believes himself to be, directly affect by any processing of personal data” may make a request for assessment to the ICO “as to whether it is likely or unlikely that the processing has been or is being carried out in compliance with the provisions” of the Act. On receiving such a request the Commissioner “shall make an assessment” (s. 42 (1)) (emphasis added). This duty is an absolute one and whether it has been carried out must also be communicated to the person who made the request (s. 42 (4)). All this is a transposition of Article 28(4) of the Directive which states that

Each supervisory authority shall hear claims lodged by any person, or by an association representing that person, concerning the protection of his rights and freedoms in regard to the processing of persona data. The person concerned shall be informed of the outcome of the claim.

The Directive particularly emphasises that the authority must hear claims for checks on the lawfulness of any restriction on Data Protection rights adopted by Member States under Article 13 of the Directive and that the person who made the claim shall “be informed that a check has taken place”. It is true that the UK legislation includes some language granting a degree of discretion to the Commissioner as to how it goes about making assessments. However, the obligation to carry out a legal assessment of processing vis-à-vis the Data Protection framework is mandatory. In contrast the ICO’s Consultation Document sees responding to concerns/complaints from the public with such an assessment as discretionary. From now on, it is suggested, a very large number of concerns/complaints will only be treated as a “source of intelligence” (p. 8) for the Office.
It is, of course, possible to have some sympathy for the ICO’s fear of being over-burdened by complaints, especially those which appear to be frivolous or vexatious. Even if this was accepted, however, one might reasonably worry about giving a regulatory agency, particularly one concerned with human rights, the sort of carte blanche discretion the ICO are envisaging in this Consultation. This discretion sits particularly uneasily with the pan-European commitment in the EU’s Charter of Fundamental Rights to recognise Data Protection as a discrete fundamental individual right, the duties arising from which are to be “subject to control” by the data protection agencies (Article 8). In any case, what is far more relevant from a rule of law perspective is that such a wide discretion is not part of the current legislative framework at either the national or the pan-EU law. To the contrary, the ICO has a statutory duty to consider all bona fide requests for assessment. This is a key right given to data subjects under the current Data Protection scheme. The ICO should not be seeking to unilaterally resile from it.
The ICO’s Consultation Document can be accessed here (http://www.ico.org.uk/about_us/consu..._consultations) and responses should be sent to consultations@ico.gov.uk by 31 January 2014.

**The Tech Clerk** · 6 January 2014, 15:44

Re: Tech Clerks - General Debt Matters Thread

Reproduced from Lexology

Reconsidering repudiations of contracts: recent developments

Latham & Watkins LLP
Oliver Browne
United Kingdom
December 18 2013

Author page »
A repudiation of a contract is a breach of contract by one party that is sufficiently serious to entitle the other party to treat the contract as terminated with immediate effect and to sue for damages. An innocent party, faced with a repudiation, is entitled to choose whether to: (i) treat the contract as continuing, which is known as affirmation of the contract; or (ii) accept the repudiation and bring the contract to an end, thereby discharging all future obligations under the contract. It is said that there is no third choice in addition to these two options. Nevertheless, there is, as described by Rix L.J. in Stocznia Gdanska SA v Latvian Shipping Company (No.2) [2002] 2 All ER (Comm), a middle ground between acceptance of repudiation and affirmation of the contract when the innocent party is deciding what to do. This article examines this grey area.
The test for repudiation derives from the case of Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26. The test can be summarised as the following questions: does the breach deprive the innocent party of substantially the whole benefit of the contract; or does the breach of the contract go to the root of the contract, such that the breach makes further performance of the contract impossible? If the answer to either of these questions is yes, then the innocent party may argue that the contract has been repudiated and can either affirm the contract or discharge the contract accordingly, as the party sees fit.
Why it matters: recent developments
The issue of repudiation is important because, in addition to damages — which is the innocent party’s remedy in any event — repudiation allows the innocent party to get out of the contract and extinguish any future obligations under the contract . Alternatively, if the commercial relationship allowed, or economic conditions meant that it was advantageous to do so, the innocent party may decide to continue with the contract, but reserve its right to claim damages. This flexibility is obviously very useful.
There are a number of difficulties with understanding how repudiation works, including whether a repudiation can be cured; the distinction between actual and anticipated breaches; and the date on which an assessment of the repudiation is made. The case of Ampurius Nu Homes Ltd v Telford Homes (Creekside) Ltd [2013] EWCA Civ 577 (the Ampurius case), described below, deals with these issues and makes the position clearer.
The Ampurius case
Telford Homes (Creekside) Ltd (Telford), a property development and construction firm, entered into an agreement with Ampurius Nu Homes Ltd (Ampurius), a property developer, for the 999 year lease of property comprising commercial units within four blocks (Blocks A, B, C and D). The target date for completion of Blocks A and B was 28 February 2011 and for Blocks C and D was 21 July 2010. Telford’s obligations under the contract required it to carry out the build with “due diligence” and to use “reasonable endeavours” to complete the development by the target date. However, due to the economic downturn, Telford ceased work on Blocks A and B to ease cash flow and to assist it with financing the project. Ampurius alleged that Telford’s delay was a repudiation of the agreement and reserved its position regarding acceptance of that repudiation. Negotiations were continuing between the two parties when, eight months later on 22 October 2010, Ampurius purported to terminate the contract as a result of the alleged repudiation. However, unbeknownst to Ampurius, Telford had recommenced work on Blocks A and B earlier in the month. Telford accordingly denied the alleged repudiation and continued with the project which was completed roughly nine months late, for Blocks C and D, and approximately one year late, for Blocks A and B.
On whether a repudiation had occurred, the Court of Appeal first looked at whether the effect of the breach (in this case a one year delay) deprived Ampurius of the substantial benefit of the whole contract. The answer to which the Court of Appeal came, in the context of a 999 year lease, was that the breach surely had not. Ampurius further underscored this answer, admitting that the delay had not caused any corresponding loss.
On the correct time for assessment of whether there had been a repudiation, Ampurius argued that the correct date was the date of the repudiation itself. However, the Court of Appeal decided that the assessment should take place when the repudiation is purportedly accepted and the contract terminated.
The Court of Appeal ultimately found that the repudiation had been cured. Thus, Ampurius had no right to terminate the agreement. As a result, Ampurius’ injury was restricted to the delay caused by the suspension of work. The delay caused by Telford was not a breach of the necessary severity to constitute a repudiation of the contract.
What we learn from the Ampurius case
The confirmation that an innocent party can have time to decide whether to accept a repudiation must be considered in light of the risk of an event occurring after the repudiation which cures the situation, such as happened in the Ampurius case. As long as the contract stays alive, the innocent party runs the risk that the repudiation becomes a mere anticipatory breach that can be overtaken by another event.
The Ampurius case simplifies some of the potentially confusing issues surrounding repudiation, which can be summarised as follows:

the analysis of whether a breach is serious enough to amount to a repudiation of the contract must take place at the time of the innocent party’s purported acceptance of the repudiation; and
both anticipatory breaches and breaches which constitute a repudiation of the contract in question have the potential to be cured before an election is made.

This article is made available by Latham & Watkins for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. Your receipt of this communication alone creates no attorney client relationship between you and Latham & Watkins. Any content of this article should not be used as a substitute for competent legal advice from a licensed professional attorney in your jurisdiction.

**The Tech Clerk** · 20 January 2014, 09:21

Re: Tech Clerks - General Debt Matters Thread

http://www.abandonedbritish-chinesesoldiers.org.uk/

Did you know about this:- we knew about the Gurkas??????????????

**The Tech Clerk** · 26 January 2014, 13:58

Re: Tech Clerks - General Debt Matters Thread

http://youtu.be/z4ZipKdI1sY

**The Tech Clerk** · 6 February 2014, 10:18

Re: TTC - O.H. Capital One PPI Claim

3 debt firms lose credit licences: http://bit.ly/1ateWiC via @CreditTodayUK

**The Tech Clerk** · 6 February 2014, 10:58

Re: TTC - O.H. Capital One PPI Claim

Press releases 2014 -

OFT finds three debt businesses unfit and excludes a solicitor from undertaking licensable activities

08/14 5 February 2014
The OFT has refused to renew the consumer credit licences of debt purchaser HFO Capital Limited, and two associated debt collectors, HFO Services Limited and Roxburghe (UK) Limited.
Alasdair Turnbull, a solicitor who acted for the group of firms, has also today been excluded from the group consumer credit licence held by the Law Society for England and Wales.
The OFT found evidence of misleading and unfair practices in the businesses' operations, including:

sending debt collection letters which misrepresented debtors' legal position
misleading and otherwise inappropriate behaviour by HFO and Roxburghe agents during phone calls to debtors
failing to properly investigate disputed debts
failure to respond appropriately to the concerns of regulators, including the OFT.

David Fisher, OFT Senior Director for Consumer Credit, said:
'We expect businesses in the debt collection sector to behave with integrity and treat their customers fairly and transparently. We will not hesitate to refuse to license debt collection businesses that fail to do so.'
The parties have until 24 February 2014 to appeal the decision.
NOTES

The Consumer Credit Act 1974 requires businesses that offer goods or services on credit, or lend money, or are involved in activities relating to credit or hire, to be licensed by the OFT. The OFT has a statutory duty under the Act to administer the consumer credit licensing regime, and must be satisfied that a licensee is fit to hold a consumer credit licence. Trading without a licence in such cases is a criminal offence and can result in a fine and/or imprisonment.
The OFT's consumer credit team currently has 32 investigations open into firms which intelligence suggests are engaged in unfair practices or may be otherwise unfit to hold a licence.
The Financial Conduct Authority (FCA) will take over regulation of consumer credit from the OFT on 1 April 2014. The transfer of regulation is part of the Government's programme of regulatory changes for financial services and brings conduct of business regulation under a single financial services regulator. See the FCA's website for more information.
Businesses seeking a consumer credit licence should see the Consumer credit changes page for more information.

**The Tech Clerk** · 6 February 2014, 10:59

Re: TTC - O.H. Capital One PPI Claim

wonder who the 32 cases are? wonder any I complained about?

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