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Third parties should face the fine when responsible for data losses

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Third parties whose actions lead to data breaches should bear the brunt of ICO fines.

Speaking to SC Magazine, Jonathan Armstrong, lawyer at Duane Morris LLP, said that the impact of monetary fines from the Information Commissioner's Office (ICO) should be passed on to those directly responsible for the breaches.

He said: “There ought to be more of a debate on fines to NHS trusts, as a lot come out of patient care – we should consider a fine against those managers responsible and fines should be passed on to the guilty parties.

 “In some of the NHS fines, some trusts say that they can get the money back from the contractor, but this comes down to contract management. Principle seven of the Data Protection Act says that ‘appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data'. This should apply to everyone – contractors should have a contractual requirement too.

“If a third party loses my data then they should suffer the consequences as well.”

In recent news, St George's Healthcare NHS Trust in London was fined £60,000 after sensitive medical details were sent to the wrong address by a member of staff; Central London Community Healthcare NHS Trust was fined £90,000 after patient lists were faxed to the wrong recipient; while the largest monetary penalty to date of £325,000 was issued to Brighton and Sussex University Hospitals NHS Trust after hard drives containing sensitive patient information were sold by a third party.

An ICO spokesperson said: “The Data Protection Act confirms that it is the data controller that must ensure that any processing of personal data for which they are responsible complies with the act. Failure to do so risks enforcement action, even prosecution, and compensation claims from individuals.

“Data controllers remain responsible for ensuring their processing complies with the act, whether they use the data in-house or employ a separate contractor as a data processor.

“Making individuals or other contractors responsible for data breaches would require the law to be changed, which would be a matter for the government to consider.”

Responding to the news that the ICO had served 68 warning notices for data security lapses in the first half of 2012, in comparison with 46 at this point last year, Ross Brewer, vice president and managing director for international markets at LogRhythm, said that it was about time the ICO took a much tougher approach when dealing with data breaches, given the somewhat lacklustre approach of previous years.

He said: “In today's information age, nominal fines and letter-writing initiatives to warn about data handling simply do not cut it – hence the almost constant stream of data incidents still hitting headlines.

“The ICO seems to be taking data security more seriously and organisations will have no choice but to take heed if they wish to avoid the financial and reputational repercussions of a breach.

“With the growing number of fines that the ICO is dishing out, it will be much easier for the public to identify those organisations that are being irresponsible with their data – and as an additional incentive, the increased penalty per organisation ensures that the impact on the bottom line will certainly be felt.”

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