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09 February 2017

NMA Wins Press Exemption In Digital Bill

The News Media Association has secured an exemption for journalists from a proposed new law that criminalises the leaking of information held by Government departments.

The Digital Economy Bill permits Government departments to share information on individuals and companies with each other, where the aim is to detect and investigate fraud against the public sector. The original version of the Bill then went on to prohibit the disclosure of this information for any other purpose.

The NMA and Media Lawyers Association expressed concern that this provision could be applied to leaks and whistleblowing by public servants to newspapers and represented a serious risk to investigative journalism.

The NMA wrote to Culture, Media and Sport Minister Matthew Hancock, warning that “the absence of defences for journalists means that journalists and media organisations could be prosecuted, even if they are plainly acting in the public interest or reasonably believe that they are doing so.”

The letter added that “the existing laws that govern the sharing of information, such as the Data Protection Act and the law on breach of confidence have defences for journalistic works and disclosures in the public interest. These protections recognise the importance of freedom of expression and the weight that must be given to its protection.”

The Government has now amended the Bill in the House of Lords to include a defence for “publication of information for the purposes of journalism, where the publication of the information is in the public interest.”

In a letter to the NMA, the Government said it “does not want to curtail freedom of speech or the legal rights of whistleblowers” and was tabling the amendments “to put the matter beyond doubt.”

Peers also debated an amendment proposed by Conservative peer Lord Lucas to empower Ofcom to carry out evaluations of algorithms used by companies such as Google. Speaking in favour of his amendment, Lord Lucas said: “I do not know of any great harm currently being done by any algorithms, but we ought to be aware of the power these procedures have in our lives.

"They govern the choice of what people see on the internet. The potential for this to interfere with news flow is obvious. If you type something into Google, it decides what you get to see.”

Representing the Government, Baroness Peta Buscombe said this was a “serious and growing issue”: “I am aware of concerns on this issue; algorithms can play a role in deciding which search results and news stories are presented on websites and social media platforms. Fake news is an issue that the Government are looking at specifically—and it is complex.”

She said that while the Government was in “listening mode” on this, “we believe it is too early to conclude that legislation is necessarily the answer.” She also confirmed that the Government has asked the Royal Society and the British Academy to review the "UK’s data governance landscape" and that recommendations are expected later this year. The amendment was withdrawn.

Opposition and cross-bench peers have also been tabling amendments to the Bill, including another attempt by Baroness Hollins to implement aspects of the cost-shifting regime for news publishers envisaged by Section 40 of the Crime and Courts Act 2013.

This time, the cross-bench peer is seeking to require publishers of publishers of “digital published news-related material” to pay both sides’ costs in defamation, privacy and other actions even if they have won, unless they are a member of an approved regulator. The amendment will only succeed if it attracts cross-party support.

Government-supporting MPs and peers have not supported attempts to activate the Section 40 regime since Culture Secretary Karen Bradley announced late last year a public consultation on the subject. The DCMS is currently reviewing the responses.

Labour’s culture spokesman in the House of Lords, Lord Stevenson of Balmacara, has also tabled an amendment to the Bill to require Ofcom to report to Parliament within a year “on the arrangements that would need to be made by Ofcom if it were to assume the responsibilities of an independent regulator for digital publications.”