On 15 April the ICO published guidance on how its approach to its role as an independent regulator would change as a result of the current public health crisis. The guidance may offer some comfort to organisations which are concerned about the potential impact of the ICO taking regulatory action at the current time.
In the guidance, the ICO acknowledges that it should act in the public interest, and in a pragmatic and proportionate manner, which takes into account the fact that many organisations are facing staff shortages and acute financial difficulties, and public authorities are facing front-line pressures.
In particular, the guidance states that the ICO is “committed to an empathetic and pragmatic approach” which will involve:
- Focusing its efforts on the most serious challenges and greatest threats to the public;
- Taking firm action against those looking to exploit the public health emergency through nuisance calls or by misusing personal information; and
- Being flexible in its approach, taking into account the impact of the economic or resource burden its actions could place on organisations.
When conducting investigations, the ICO says it will take into account the particular impact of the crisis on that organisation. That may mean that the ICO reduces the use of its formal powers to require evidence, and allows organisations longer periods to respond, and focuses its investigations on circumstances suggesting serious non-compliance.
The ICO adds that, when deciding whether or not to take formal regulatory action, including issuing fines, it will take into account whether the organisation’s difficulties arise out of the crisis, and if it plans to put things right at the end of the crisis. It is likely that the level of fines will reduce, since many organisations will struggle to pay substantial fines at this time.
The ICO is keeping its guidance under review and may update its advice as the situation develops, but in the meantime it appears that the ICO intends to take a reasonable and considered approach, which many organisations will welcome.