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LAW
TH E TUESDAY REVIEW
T he In d e p en d e n t 7 M arch 2000
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From e-mails to shopping transactions, our every move leaves a cyber imprint. As we surrender our privacy in
return for technological advances, how far can the new Data Protection Act protect us? By Grania Langdon-Down
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I he growth in technology based solely on the results of auto­ the new Act is likely to be from a
•has created the spectre of matic processing, such as psycho­ group of MPs and campaigners
“dataveillance”, the abil­ metric testing or CV scanning, and seeking to overturn the blanket se­
ity to track a person by the right to stop junk mail. Rights to crecy surrounding personal files
monitoring the shadow compensation have also been ex- held by the intelligence services.
they cast in data. From the moment tended to cover damage caused by
But will the DPA really bite on be­
you get up, your movements can be any breach of the Act.
half of individual rights or will it
For H companies, significant prove to be little more than a frame­
■ tracked as you switch on your cable'
television, log on at work make a changes include controls on the ex­ work for managing information?
telephone call, surf the Internet, and port ofpersonal data outside the Eu­ Madeleine Colvin, legal policy con­
use your credit card to pay for ropean Union. It becomes a criminal sultant'with Justice, welcomes the
petrol, shopping, a cinema trip or a offence not to notify the Data new Act but says there are concerns
Protection Commissioner that you that the Commissioner has no
meal in a restaurant
At work, employers are increas­ are processing data. It is also an power to monitor compliance or
ingly trying to protect their business offence unlawfully to obtain or sell carry out checks without die consent
interests by using covert surveil­ personal data.
of the data controller in the absence
lance, so employees can find they are
Few landmark cases were of a complaint - a power considered
not only being monitored by CCTV brought under the previous 1984 essential in most other European
but their e-mails might be being read Data Protection Act because its countries. She also warns that sub­
and their telephone conversations powers and penalties were so lim­ ject access rights were “largely
ited However, the human rights case illusory” when it came to police files
monitored and recorded.
Fbr data protection expert Robin brought by Alison Halford, the for­ because of their ability to withhold
Chater, the time is fast approaching mer Merseyside Police assistant data as prejudicial to crime pre­
when we will have surrendered our chief constable, influenced the pas­ vention -yet inaccurate information
right to privacy in return for our de­ sage of European data protection could be hugely damaging to the in­
pendence on technology We will then legislation. She had been told she dividual concerned
become little more than actors in an could use her office telephone • Robin Chater, director of the Per­
all-encompassing Truman Show, privately for the employment case sonnel Policy Research Unit, was
the Jim Carrey film in which he she was bringing against the force, commissioned by the Data Protec­
grows up unaware he is the central but it then bugged the line - and the tion Commissioner to research the
character in a non-stop television European Court of Human Rights “uses and misuses” of personal
show until he realises that every held that it had breached her right data in the workplace and draw up
move he makes is being monitored. to a private life. Other cases involv­ a-draft code ofpractice. This includes
So, if Big Brother is watchingyou, ing potential data protection issues guidance on surveillance, the col­
what protection can you expect have been brought under employ­ lection of information on drug and
from the law? From 1 March, when ment laws.
alcohol use and the use of automated
However, the case of three broth­ tests. It counsels employers to in­
the Data Protection Act 1998 finally
came into force, individuals gained ers who visited France as Welsh foot­ clude the right to conduct surveil­
enhanced rights to access person­ ball fans in 1990 and were stopped lance in their employment contracts
al information, including data held at an identity check by Luxembourg and staff manuals and to seek agree­
on manual files. It also introduces police highlights the damage inac­ ment with employees about the pol­
the concept of “sensitive personal curate information can cause. They icy, practice and installation of any
data”, such as religious beliefs and discovered two years later, after monitoring equipment. A formal
mental or physical health, which can being strip searched by Belgian code will be published later this year.
only be processed for specified pur­ police, that their names had been Mr Chater says: “When employers
poses with the individual’s explicit given to the National Criminal In­ assault an individual's privacy, they
consent and which should outlaw telligence Service as “troublemak­ are generally not taking part in an
ers”. It took a long campaign before orchestrated conspiracy.”
employment blacklists.
Other new rights include the the European Commission agreed
Fbr Liz Parratt, spokeswoman for
right to prevent processing likely to their freedom of movement had the human rights group Liberty,
cause damage and distress, the been wrongly restricted.
the new Act is welcome but “it still
One of the first challenges under won’t provide enough protection
right not to have significant decisions
In ‘The Truman Show1Jim Carrey plays a m a n whose whole life is being secretly filmed for TV
because surveillance in the work­
place is such a rapidly growing area
and quite a bit falls outside the
scope of the Act”.
Jessica Learmond-Criaui, partner of London solicitors Fladgate
Fielder; agrees: "You have to see the
Act in the context of other legisla­
tion and codes, including those
governing human rights, whistle­
blowing, the interception of com­
munications, and information about
criminal records. However, the DPA
recognises that we live in a 24-hour
global village and gives individuals
some control." •
Meriel Schindler, employment
partner at law firm Withers’, says the
Act would have a substantial impact
on employers. They should be re­
considering their internal practices,
such as the interception of e-mails,
because it could involve personal
data. However, she believes the Act
was primarily designed to give em­
ployers a system to manage
information. “I don’t think the Act
alone does an awful lot for individ­
ual privacy - that will come with the
Human Rights Act.”
Heather Rowe, partner at
Lovells, says companies should be
doing data audits and work out how
they would deal with requests. “On
surveillance, employers should be
setting out their policy in staff man­
uals and employment contracts - Big'
Brother can watch you as long as
you know he is.”