The UK’s data protection authority is seeking new powers to prevent criminals from profiting from data-related crime.
Up until now, the ICO has relied on help from partner agencies to exercise powers under POCA in connection with investigations into data-related offences. However, it has said that assistance is no longer available to it.
The ICO has opened a consultation on its application for powers, which stakeholders have until 6 December to respond to.
“This is an interesting development in the ICO’s use of statutory powers to rigorously pursue breaches of privacy legislation in a criminal context,” said data protection law expert Laura Gillespie of Pinsent Masons, the law firm behind Out-Law. “We have already seen the ICO seek recovery of monies under POCA in partnership with others. In July 2019, for example, a motor industry employee was compelled to repay £25,500 and ordered to pay a further £8,000 in costs after he was found to have profited from accessing customer records containing personal data, without permission.”
White collar crime and investigations specialist Neil McInnes, also of Pinsent Masons, said: “The consultation does not involve a proposal to make a fundamental change to the armoury of the ICO – it’s just a new way the powers will be exercised by the ICO directly, as opposed to in partnership with other agencies.”
“The powers the ICO is seeking to have direct access to are both criminal and civil investigatory powers. The powers contained in part 5 of POCA, for example, include civil recovery orders to recover property obtained through unlawful conduct, where the standard of proof required to obtain such orders is the civil standard of on the balance of probabilities, rather than the criminal standard of beyond reasonable doubt,” he said.
In a statement, the ICO said: “The ICO previously worked in partnership with other agencies which conducted financial investigations on our behalf and assisted the courts with these cases. To date the ICO has prosecuted and convicted a number of individuals who were later stripped of assets by the courts using POCA confiscation powers. However, these partner agencies are no longer able to provide assistance to us.”
“There has been significant growth in the number of cases involving financial gain and should the ICO not be granted financial investigation and other associated powers under POCA, an ever-increasing number of offenders will be able to retain what can amount to significant criminal proceeds. In some cases these gains can illegally fund lavish lifestyles,” it said.
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