Personal data should be fairly and lawfully obtained, agrees private investigator Richard Newman. But how to define fairly?
Lawfully is obvious to us all but what is the definition of fairly as applied to this context. The Registrar in her publication "Data Protection Guidance, Debt Tracing and Collection July 1997" said ‘In most cases the information to be contained in personal data will be obtained fairly if the person supplying the information is aware of<br>
a) The identity of the data user<br>
b) The uses to which the personal data may be put<br>
c) Any proposed disclosures of personal data<br>
If there is any doubt, the data user should explain each of these to the source of the information before the information is supplied. This explanation or notification should be clearly provided and although it need not be very detailed, should put the person from whom information is requested in a position to decide whether he or she wishes to supply it."
I conduct a large number of trace enquiries of absconded debtors. If I say, "This is Richard Newman and I need your address to pass to Messrs Creditor who needs it to contact you about the money you owe them’, I commit no offence under the [Data Protection] Act [DPA 1998]. I am amazed at how many people will actually volunteer the information. The professional debtor or fraudster is a different case altogether. If a credit agency wishes to ‘re-identify’ someone or make enquiries about them in relation to a possible fraud enquiry there is some discussion with regard to the need to notify the individual of that enquiry. Myself and Rosemary Jay, writing in her paper, The Impact of Human Rights Act on Fraud Investigations; Tackling the Inherent Conflicts in Fraud Legislation, are of an accord. We agree that provided the supplier of the credit has made explicit reference in the original contract that enquiries may be made then there is no need to notify the individual in the event that they are instigated. I would venture to suggest that a panacea for the investigation profession is to persuade all persons entering into contracts to sign a ‘we will enquire about you from whatever source we see fit and divulge that information to whom we see fit’ clause in any contract. This could effectively negate the DPA 1998 on the grounds that everyone entering into that contract knew they might be subject to enquiry and investigation, following which that information could be forwarded to any third parties. It could be held, no doubt, that this is an unfair term under the Unfair Terms in Consumer Contract Regulations (UTCCR). A term is unfair if it is contrary to the requirement of good faith and so causes a significant imbalance in the parties’ rights and obligations under the contract, to the detriment of the consumers. ‘Good faith’ as defined by the Office of Fair Trading, who administer these regulations, means that the trader must deal fairly and openly with the consumer. The OFT go on to say: ‘Although standard terms may be drafted in to protect commercial needs, they must also take account of your (the consumer’s) interests and rights by going no further than necessary to protect those legitimate commercial interests.’This in my opinion is a very valid point in as much as the legitimate commercial interests of the supplier of credit will be protected by the ‘enquire of anybody clause’. It would also be in the public interest to enable the suppliers of credit to be protected from fraudulent intent.
