ICO takes action for failure to pay new data protection fee

26 Sep 2018 12:23 PM

The Information Commissioner’s Office (ICO) has begun formal enforcement action against 34 organisations that have failed to pay the new data protection fee.

The data protection regulator has sent notices of its intent to fine the organisations unless they pay. Those who don’t could face a maximum fine of £4,350.

All organisations that process personal data must pay a fee to the ICO unless they are exempt. The money is used to fund the ICO’s data protection work and new and expanded services we have introduced such as our advice line, more online resources and new guidance as strengthened data protection laws have come into force.

Paul Arnold, Deputy Chief Executive Officer at the ICO, yesterday said:

”We expect the notices we have issued to serve as a final demand to organisations and that they will pay before we proceed to a fine. But we will not hesitate to use our powers if necessary.

“All organisations that are required to pay the data protection fee must prioritise payment or risk getting a formal letter from us outlining enforcement action.”

The 34 notices of intent were sent earlier this month to a range of organisations across both the public and private sector including the NHS, recruitment, finance, government and accounting. More notices are in the drafting stage and will be issued soon.

Organisations have 21 days to respond to the notices. If they pay, action will stop. Those that ignore the notices or refuse to pay may face a fine ranging from £400 to £4,000 depending on the size and turnover of the organisation. Aggravating factors may lead to an increase in the fine up to a maximum of £4,350.

The data protection fee is set by Government which has a statutory duty to ensure the ICO is adequately funded, and is part of the Data Protection (Charges and Information) Regulations 2018. It came into force on 25 May to coincide with the new Data Protection Act (2018) and the General Data Protection Regulation. And it replaces the need to notify or register with the ICO.

The money helps fund the ICO’s work to uphold information rights such as investigations into data breaches and complaints, our popular advice line, and guidance and resources for organisations to help them understand and comply with their data protection obligations. The ICO has grown over the last two years - now employing around 670 staff.

Under the funding model, set by Government, organisations are divided into three tiers based on their size, turnover and whether an organisation is a public authority or charity.

For very small organisations, the fee won’t be any higher than the £35 they currently pay (if they take advantage of a £5 reduction for paying by direct debit).

Larger organisations will be required to pay £2,900. The fee is higher because these organisations are likely to hold and process the largest volumes of data and therefore represent a greater level of risk.

The ICO has produced a fee calculator tool and guidance on the data protection fee.

Organisations that have a current registration (or notification) under the 1998 Act – prior to 25 May 2018 – do not have to pay the new fee until that registration has expired.

Notes to Editors

  1. The fees and fines are:
    Tier 1 – micro organisations. Maximum turnover of £632,000 or no more than ten members of staff. Fee: £40
    Tier 2 – SMEs. Maximum turnover of £36million or no more than 250 members of staff. Fee: £60
    Tier 3 – large organisations. Those not meeting the criteria of Tiers 1 or 2. Fee: £2,900. 
    There is a £5 discount for payments by direct debit.
  2. Failure to pay the data protection fee is now a civil offence under the GDPR, previously this was a criminal offence under the Data Protection Act 1998.
  3. The Information Commissioner’s Office (ICO) is the UK’s independent regulator for data protection and information rights law, upholding information rights in the public interest, promoting openness by public bodies and data privacy for individuals.
  4. The ICO has specific responsibilities set out in the Data Protection Act 2018 (DPA2018), the General Data Protection Regulation (GDPR), the Freedom of Information Act 2000 (FOIA), Environmental Information Regulations 2004 (EIR) and Privacy and Electronic Communications Regulations 2003 (PECR).
  5. The General Data Protection Regulation (GDPR) is a new data protection law which applies in the UK from 25 May 2018. Its provisions are included in the Data Protection Act 2018. The Act also includes measures related to wider data protection reforms in areas not covered by the GDPR, such as law enforcement and security. The UK’s decision to leave the EU will not affect the commencement of the GDPR.
  6. The data protection principles in the GDPR evolved from the original DPA, and set out the main responsibilities for organisations. Article 5 of the GDPR requires that personal data shall be:
    • Processed lawfully, fairly and in a transparent manner in relation to individuals;
    • Collected for specified, explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes;
    • Adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed;
    • Accurate and, where necessary, kept up to date
    • Kept in a form which permits identification of data subjects for no longer than is necessary; and
    • Processed using appropriate technical or organisational measures in a manner that ensures appropriate security of the personal data.”
    • Article 5(2) requires that “the controller shall be responsible for, and be able to demonstrate, compliance with the principles.”
  7. To report a concern to the ICO go to ico.org.uk/concerns.