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  #11  
Old 31-01-2008, 04:00 PM
powerful_rogue powerful_rogue is offline
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This was a question I sent to Equifax

Quote:
This is in relation to your reply on ref 1234568. For some reason the matter has been closed and I was unable to reply.

In your previous reply you state you can continue to process these details for six years on the basis of paragraph 6 of Sch 2 of the Data Protection Act, however meeting a Schedule 2 condition will not, on its own, guarantee that processing is fair and lawful. The general requirement that data be processed fairly and lawfully must be satisfied in addition to meeting the schedule 2 conditions.

When I first applied for one of their phones I was only 19 years old and had no experience of ever having had financial problems. Accordingly I had no knowledge that Credit Reference Agencies even existed, let alone the functions they performed for the financial sector.

As at no time have I ever been supplied with the "Fair Processing" information as indicated in the Information Commissioners Office guidelines. These are some of the details that are included in the information, and it was only recently that I discovered I should have been furnished with them at the outset and so I should have been told the purpose or purposes for which the data were intended to be processed, and
(d) any further information which is necessary, taking into account the specific circumstances in which the data are or are to be processed, to enable processing in respect of the data subject to be fair.
In deciding whether, and if so, what, further information is “necessary” to satisfy (d) above, data controllers should consider what processing of personal data they will be carrying out once the data have been obtained and consider whether or not data subjects are likely to understand the following:-
(a) the purposes for which their personal data are going to be processed;
(b) the likely consequences of such processing such that the data subject is able to make a judgement as to the nature and extent of the processing; and
(c) whether particular disclosures can reasonably be envisaged.
It would be expected that the more unforeseen the consequences of processing the more likely it is that the data controller will be expected to provide further information. This aspect also has a bearing on the question of what amounts to consent (see specific consideration of this issue at paragraph 3.1.5 above); in the same way that consent must be “informed”, so data subjects themselves must be fully aware of the ways in which their personal data may be processed in order for that processing to be considered fair.
In the context of the 1984 Act, the Data Protection Tribunal has supported the Commissioner’s view that personal information will not be fairly obtained unless the individual has been informed of the non-obvious purpose or purposes for which it is required, before the information is obtained. (Innovations (Mail Order) Limited v The Data Protection Registrar (September 1993)).

Where companies do provide full details of reporting to CRAs and how their customers may be affected by missed and late payments, the absence of the fair reporting schedule might not be so serious, but with Orange providing a lack of information on those vital topics, one would expect that it should be virtually mandatory that the fair reporting booklet be supplied with all their contracts to avoid charges that their processing is unfair from the very outset.

You will notice that I was not even informed of the obvious purposes for the use of my information, let alone the non obvious purposes. If you bear in mind my age at the time I took out the contract, the complete lack of any relevant information as to how my data would be processed makes the processing unfair and therefore should not be processed any longer.

I request that the information be removed from my file due to the fact it is being processed unfairly. The information is also being processed unlawfully as at no point in the terms and conditions did it state that information would be processed for six years from the date of closure. As the contact is now over, so is any consent obtained from the terms and conditions of the contract.
Today I received the following reply that has made my blood boil. Its a standard template answer that dosent answer any of my questions. They seem tho think they can hide behind the "If your not happy talk to the ICO answer"

Quote:
Thank you for your recent enquiry.

As previously advised the revocation of your permission for Equifax to continue to process your data, it is our view, also shared by the Information Commissioner's Office, that we are able to share account data between lenders and the Credit Reference Agencies for the duration of the contract and for 6 years beyond on the basis of paragraph 6 of Sch 2 of the Data Protection Act. This states "“The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case because of prejudice to the rights and freedoms or legitimate interests of the data subject.”

My final investigation into this matter is now closed. If however you are not satisfied with the outcome of my final review, I would suggest that you may wish to contact the Information Commissioner.

The address is as follows:-

Information Commissioner’s Office
Wycliffe House
Water Lane
Wilmslow
Cheshire
SK9 5AF

Alternatively, you may wish to contact the Financial Ombudsman Service. Please find contact information below.

Telephone: 0845 080 1800
Website: www.financial-ombudsman.org.uk

If you require further information on the content of your credit file, you may wish to visit: https://equifaxuk.custhelp.com. Here you can view our Frequently Asked Questions and submit an on-line query or attach supporting documentation via our "Ask a Question" facility, with no concerns about postal delays.

We hope the above details are of assistance to you.

Equifax Customer Services
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  #12  
Old 31-01-2008, 04:07 PM
powerful_rogue powerful_rogue is offline
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My reply I have just drafted up. Your views appreciated

Quote:
It appears from your response that this is a template answer as none of my original questions have been answered.
I have given you reasons in my previous reply why relying on Paragraph 6 of Sch 2 of the Data Protection Act isn’t in itself enough, however you seem to think its acceptable to give me exactly the same answer without nothing my concerns.

I request this matter be escalated and someone who is in a position to answer my questions who dosent rely on standard template responses. I find your reply as a Data Controller quite rude in fact. I have put several questions to yourself with reasoning and instead of answering directly you seem to think its acceptable to refer me to the ICO.
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  #13  
Old 31-01-2008, 04:40 PM
powerful_rogue powerful_rogue is offline
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Right! Ive just got off the phone to the Information Commissioners Office.

They have advised that companies CANNOT rely on paragraph 6 of Sch 2 of the Data Protection Act if its deemed the information has not been processed fairly and lawfully. I then asked the question "If you was not advised the information would be processed for 6 years after the account was closed and there is no mention of this in their terms and conditions, is it right to presume the information is being processed unfairly?" In which they repled "If that is the case, then the information is not being processed fairly and as such they cannt rely on paragraph 6 of Sch 2 of the Data Protection Act"

Bingo! She said if I asked the question in an email, they will put this in writing to me. Not holding my breath, but this could be interesting!

Last edited by powerful_rogue : 31-01-2008 at 04:58 PM.
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  #14  
Old 31-01-2008, 04:52 PM
sparkie1723 sparkie1723 is offline
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Hi P.R.

Get that in writing from the ICO, and keep it up your sleeve, and use it stategically when the time is exactly right


sparkie
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  #15  
Old 31-01-2008, 05:58 PM
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This is a really useful thread guys - thanks for your contributions
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  #16  
Old 31-01-2008, 06:39 PM
powerful_rogue powerful_rogue is offline
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Just sent this off to the ICO

Quote:
It appears companies are relying on paragraph 6 of Sch 2 of the Data Protection Act to continue processing information for six years once a contract has been terminated, however as you are aware, meeting a Schedule 2 condition will not, on its own, guarantee that processing is fair and lawful. The general requirement that data be processed fairly and lawfully must be satisfied in addition to meeting the schedule 2 conditions.

When I first signed a contract I was only 19 years old and had no experience of ever having had financial problems. Accordingly I had no knowledge that Credit Reference Agencies even existed, let alone the functions they performed for the financial sector.

It was only recently that I discovered for processing to be considered fair the data subject should be supplied with "Fair Processing" information as indicated by your guidelines which should include the purpose or purposes for which the data were intended to be processed, and
(d) any further information which is necessary, taking into account the specific circumstances in which the data are or are to be processed, to enable processing in respect of the data subject to be fair.
In deciding whether, and if so, what, further information is “necessary” to satisfy (d) above, data controllers should consider what processing of personal data they will be carrying out once the data have been obtained and consider whether or not data subjects are likely to understand the following:-
(a) the purposes for which their personal data are going to be processed;
(b) the likely consequences of such processing such that the data subject is able to make a judgement as to the nature and extent of the processing; and
(c) whether particular disclosures can reasonably be envisaged.

It would be expected that the more unforeseen the consequences of processing the more likely it is that the data controller will be expected to provide further information. This aspect also has a bearing on the question of what amounts to consent (see specific consideration of this issue at paragraph 3.1.5 above); in the same way that consent must be “informed”, so data subjects themselves must be fully aware of the ways in which their personal data may be processed in order for that processing to be considered fair.
In the context of the 1984 Act, the Data Protection Tribunal has supported the Commissioner’s view that personal information will not be fairly obtained unless the individual has been informed of the non-obvious purpose or purposes for which it is required, before the information is obtained. (Innovations (Mail Order) Limited v The Data Protection Registrar (September 1993).

Where companies do provide full details of reporting to Credit Reference Agencies and how their customers may be affected by missed and late payments, the absence of the fair reporting schedule might not be so serious, but with many companies providing a lack of information on those vital topics, one would expect that it should be virtually mandatory that the fair reporting booklet be supplied with all contracts to avoid claims that their processing is unfair from the very outset. I would also consider it vital for customers to be made aware that their details will be processed for six years from the date the contract is ended and the implications this may have.

I have never been supplied with any "Fair Processing" information at the start of a contract, only the terms and conditions that relate to the account. None of the terms and conditions state that they will retain information for six years after an account has been settled or that they will continue to divulge this information onto third parties. Although the terms and conditions state they will pass information onto Credit Reference Agencies relating to how I conduct my account, they do not advise of the likely consequences that processing will have.

You will notice that I was not even informed of the obvious purposes for the use of my information, let alone the non obvious purposes. If you bear in mind my age at the time I took out the contract, the complete lack of any relevant information as to how my data would be processed makes the processing unfair and therefore should not be processed any longer.

Having been unaware that my information will still be processed for six years after the contract has ended and at no point this being explained either verbally or in the terms and conditions, I would consider it to be unfair processing. As such I don’t believe the company can rely on paragraph 6 of Sch 2 as the general requirement that information be processed fairly has not been met.

I would appreciate your views on the above.

Last edited by powerful_rogue : 31-01-2008 at 09:27 PM.
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  #17  
Old 01-02-2008, 05:15 PM
Lefty Lefty is offline
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Like much other in the finance industry the CRA's have developed business models that only pay lip service to the regulation & until the consumer revolt they got away with it.

Now however as more & more consumers become aware of their rights they are trying to defend their position by both bluff & deliberate mis-information
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  #18  
Old 03-02-2008, 04:34 PM
powerful_rogue powerful_rogue is offline
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Quote:
It was only recently that I discovered for processing to be considered fair the data subject should be supplied with "Fair Processing" information as indicated by your guidelines which should include the purpose or purposes for which the data were intended to be processed, and
(d) any further information which is necessary, taking into account the specific circumstances in which the data are or are to be processed, to enable processing in respect of the data subject to be fair.
In deciding whether, and if so, what, further information is “necessary” to satisfy (d) above, data controllers should consider what processing of personal data they will be carrying out once the data have been obtained and consider whether or not data subjects are likely to understand the following:-
(a) the purposes for which their personal data are going to be processed;
(b) the likely consequences of such processing such that the data subject is able to make a judgement as to the nature and extent of the processing; and
(c) whether particular disclosures can reasonably be envisaged.
Ive just been reading Experians site, in particular "Fair Obtaining Clauses" - Has anyone ever been given any documents shown at the bottom of the page when they have applied for something which involves credit reference agencies?

Going by the above quote, unless you have been provided with any of these documents, I think it would be safe to say the processing is unfair.
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  #19  
Old 03-02-2008, 04:40 PM
tbern123 tbern123 is offline
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Are they seperate documents or things that should be included within the terms and conditions
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  #20  
Old 03-02-2008, 04:46 PM
powerful_rogue powerful_rogue is offline
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Heres their guidance.

Quote:
• For users of Forms B & D. The wording contained in the “leaflet” must be provided to the consumer by the most effective means possible at the time of application. E.g. It might be in the form of a physical leaflet with a paper application or on the reverse of the application form or for electronic applications it could be given at the same time but by electronic means. For telephone applications, normally the essence of sections 1,2 5 & 6 should be advised to the consumer before they proceed and the remainder may be provided later by the most effective means possible.
• Organisations will need to have robust systems in place to ensure that they can prove that these clauses have been provided to consumers.
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