Wrapping up this season of Data Bytes, we examine the expanded powers given to the Information Commissioner’s Office (ICO) and what this means for data protection investigations now and in the future.

Host Rhiannon Webster is joined by Ashurst colleagues Anthony Asindi and Tom Brookes to zoom in on an area of the Data (Use And Access) Act that some have overlooked – the changes to the investigatory powers of the UK’s data protection regulator.

The ICO (soon to be rebadged as The Information Commission) deals with a huge volume of complaints and data breach reports annually. Rhiannon, Anthony and Tom pinpoint three notable new powers that the ICO will soon have: to compel the production of documents, to require controllers or processors to provide a report on a specified matter, and to compel individuals to attend interviews and answer questions.

As well as outlining which powers are effective now and when the other powers are likely to come into force, the podcast covers restrictions on the powers including privilege and self-incrimination – with a notable exception being where individuals may be required to answer potentially self-incriminating questions if they relate to Data Protection Act breaches. Anthony notes that refusing to cooperate could become "an aggravating factor" leading to higher fines for the controller or processor.

Tom identifies the mandatory report power as a potential "game changer," shifting the investigative burden and costs to organisations while potentially allowing the ICO to investigate more cases.

Anthony offers some illuminating comparisons with the FCA’s powers under the Financial Services and Markets Act (while cautioning that we don’t know certain that the ICO will follow a similar approach). And Tom adds that the ICO should soon provide guidance on its new powers and the circumstances where those might be applied.

To listen to this – and all our previous Data Bytes episodes – search for “Ashurst Legal Outlook” on Apple Podcasts, Spotify or your favourite podcast player. And to find out more about the full range of Ashurst podcasts, visit ashurst.com/podcasts.

The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to. Listeners should take legal advice before applying it to specific issues or transactions.

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