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12 October 2017

Lord Black: New Data Protection Regime Must Contain Journalism Safeguards

Freedom of expression and the ability of journalists to expose wrongdoing must be safeguarded as the new data protection regime comes into force, Lord Black of Brentwood said in a speech in the House of Lords this week.

In the second reading of the Data Protection Bill on Tuesday, Lord Black, chairman of the News Media Association’s legal, policy and regulatory affairs committee, welcomed the Government’s consultation on the issue but warned of a number of proposals in the Bill which could chill investigative journalism.

Lord Black and Viscount Colville of Culross (Crossbench), both warned against increased powers enabling the Information Commissioner to investigate applications for journalistic exemptions prior to publication to avoid the possibility of the ICO becoming a statutory press regulator. 

Lord Black said: “We need to ensure that the investigation and enforcement powers of the Information Commissioner, particularly in the area of pre-publication activities, are not extended, and that the existing checks and balances, which have worked extraordinarily well in the current regime, are rigorously maintained in this legislation, not reduced.”

“If not, there is a danger that the Commissioner could become some form of statutory press regulator, which is not what I believe the Government intend, and which most of us would believe to be abhorrent in a free society.”

Lord Black’s concerns were echoed by Viscount Colville, who said giving the ICO the powers to examine applications for journalistic exemptions would result in the ICO “unilaterally” second-guessing editorial decisions which would erode the right of the editor to decide whether a story is in the public interest.

“In my view, this is not even consistent with the terms of journalistic exemption. It would result in investigative journalism being delayed or even stopped until the ICO has examined it for compliance with part of the Act prior to publication. The provision could act as a form of censorship,” Viscount Colville said.

Lord Black said that data protection was increasingly being used as an “alternative remedy” to libel in order to blunt legitimate investigative journalism and called for existing journalistic safeguards to be enhanced to prevent a chill on free speech.

Speaking for the Government, DCMS Under-Secretary of State Lord Ashton of Hyde said the Bill would ensure “that journalists can continue to enjoy the freedoms that we cherish in this country” and that “journalists must still be able to investigate scandal and malpractice.”

In his speech, executive director of Telegraph Media Group Lord Black said that he was grateful that the Government has consulted widely on the impact of the new data protection regime on journalism and was determined to ensure that freedom of expression was protected. 

“Such protections are vital for us as citizens, who depend on a free press to hold those in positions of power to account. As importantly, particularly in a post-Brexit world—and we have heard a lot about that world today—proper implementation of the exemptions is essential to the continuation of the UK’s shining role as a world leader in the creative, cultural and communications sphere.”

But Lord Black warned: “Data protection is fast becoming an alternative remedy for those who wish to blunt investigative journalism or seek to launder a justly bad reputation by removing articles from the online record. That is something that we have heard a bit about today.”

He said that one issue that could be considered was whether defences set out in the Defamation Act 2013 could be replicated and applied to data protection claims. There needed to be explicit protection for academic, literary and media archives, Lord Black added, and “completely global” media would also need to be able to receive and share certain personal data rights across the world.

Lord Black concluded: “I spoke earlier about the Government’s commitment to consultation on the detail of this Bill, and the constructive and open way in which they have worked with all those impacted in this area.

“I very much hope that the Minister will continue to undertake such work with all those who have an interest in this vital issue and that we can, during the passage of the Bill, make further amendments to protect, what at the end of the day, is the foundation stone of our democracy.”

In the debate, Lords from Conservatives, Labour and Lib Dems also highlighted concerns around social networks and the need to ensure that they are held accountable for their influence over society. 

Leading the response from the Opposition, Lord Stevenson of Balmacara said:  “The big tech companies have for far too long got away with the conceit that they are simply neutral platforms. They are not; they are active media and information companies, and their stock market valuations are based on the data flows they generate and how they can be monetised.

“With that role surely should come broader societal responsibilities, but the Bill does not go into this area at all. There is nothing about regulating fake news, no attempt has been made to ensure that data companies are covered by competition and other regimes which apply to media companies, and there are no proposals to deal with the allegations being made about undue influence by social media companies and others on politics and elections both here and in the US. We will certainly table amendments in this area.”