Lord Black Puts Forward Data Protection Proposals to Safeguard Investigative Journalism

Lord Black has put forward a series of data protection proposals, widely supported across the print, broadcast and online media, designed to safeguard investigative journalism and prevent the Information Commissioner becoming a statutory regulator of the media “with dangerous and unprecedented prepublication powers.”

Speaking in a House of Lords debate on the Data Protection Bill on Monday, Lord Black, chairman of the News Media Association’s legal, policy and regulatory affairs committee, tabled a series of amendments designed to safeguard and strengthen journalistic exemptions to the regime and maintain consistency with other legal frameworks.  

Lord Black said: “The amendments are intended to safeguard investigative journalism, publication and archives, both domestic and international, for all news media, print and online. In particular, they would prevent the Information Commissioner becoming a statutory regulator of the media, with dangerous and unprecedented prepublication powers. Where the accuracy of what has been published is challenged, they would adopt the approach of defamation law, rather than undermining it.”

The amendments include a journalistic exemption covering the requirement for prior consultation, set out in the GDPR, which would force media to consult with the ICO prior to publication posing “a huge risk to investigative journalism.”

“Without such an exemption, there would be an obligation to consult the ICO up to 14 weeks or more in advance, where a “data protection impact assessment” indicates that the proposed processing would result in high risk to data subjects in the absence of measures to mitigate that risk,” Lord Black said.

“It is wholly inappropriate to require the broadcasters or other media to consult the ICO and seek approval prior to investigations requiring use of secret filming techniques and similar emerging technology, such as drone use or wearable technology.”

Other amendments include:

  • Strengthening the journalistic exemption to remove the word “only” for special purposes to cover “ancillary processing” by media organisations. For example, Lord Black said, the media should not be penalised if the police sought the pre-broadcast disclosure of journalistic material in relation to an undercover investigation to see whether the alleged wrongdoing ​merited further police investigation;
  • Ensuring that both the specific personal data and the related material which forms part of the background research are protected;
  • Bringing the Bill in line with non-binding guidance from the Information Commissioner, which already recognises that media can form the reasonable belief that compliance would be incompatible with the special purposes where it would be “impractical or inappropriate.”
  • Making clear the special importance of the public interest in freedom of expression and information itself in the widest sense – from the trivial to the most serious – must be taken into account by the Information Commissioner and the courts to maintain consistency of approach with the current data protection regime;
  • Addressing the need for further exemptions because the GDPR provisions could otherwise have serious, albeit unintended, consequences for all the media;
  • Amendments to “put beyond doubt” the public interest protections for cross border journalistic activity and media archives. This exemption is needed to allow news media publishers to reach their international audiences and to enable collaborative investigative journalism across borders such as with the Paradise papers;
  • Providing explicit safeguards for news media archives;
  • Adding a journalistic exemption to ​the requirement for data controllers to inform the data subject about the recipients of personal data subject to rectification or erasure, if requested by the data subject, so individual ‘publishees’ don’t have to be contacted;
  • Introducing a limitation period to prevent complaints about accuracy being brought outside a period of one year after the date of first publication, to maintain consistency with the defences under the Defamation Act 2013 and prevent some complainants attempting to abuse data protection law by bringing complaints many years after material is first published.

Lord McNally, Lib Dems, said he wanted to ensure that the Bill contained “no accidental curbs on the activities of a vigorous and free press and media” adding: “I am interested in the idea, which he quite rightly pointed out, of investigative journalists having to give prior notice of what they are doing, which seems rather counterintuitive to the idea of investigative journalism.

“I have certainly received that point of view from the BBC and other forms of journal about the effect of that proposal. The noble Lord, Lord Black, is quite right. We have seen only recently the Paradise papers as another example of investigative journalism exposing things that people would rather keep quiet, which is massively in the public interest.

“He also referred to the number of exposés of care homes, prisons and young offender institutions, all of which are massively in the public interest. It would be wrong to allow the Bill to bring into law provisions that would chill, prevent or curb the great traditions of a free and vigorous press.”