Government Acknowledges Media Industry’s Data Protection Concerns

The Government has acknowledged media industry concerns around proposals in the Data Protection Bill which would make the Information Commissioner into a statutory regulator of the media with dangerous and unprecedented prepublication powers.

Responding on behalf of the Government to concerns from peers around the proposals, Lord Keen of Elie said: “I acknowledge the significance of that provision and I am happy to look again at that issue in light of the expressions of concern I have heard from around the Committee about it.”

Earlier in the House of Lords debate, Lord Black of Brentwood had tabled amendments designed to safeguard investigative journalism as the new data protection comes into force which the Government said yesterday it would look at.

Speaking in the debate, Lord Black¸ chairman of the News Media Association’s legal, policy and regulatory affairs committee, said the broadcast, print and online news media were united in opposition to proposals to enable the Information Commissioner to consider and make determinations on pre-publication journalistic dealings involving personal data.

The proposals are “wholly inimical to press and media freedom. It gives a state enforcement authority the power of minute examination of editorial pre-publication processes, striking at the heart of editorial independence and freedoms,” Lord Black said.

“I stress again that this is not a media-specific point. The same prepublication consideration for a written determination would apply to anyone processing for academic, literary or artistic purposes. It is worth pondering for a moment the implications of that,” Lord Black continued. “This is not in line with the Government’s laudable intention to protect free speech.”

Viscount Colville of Culross, Crossbench, said: “These powers can be used prior to publication, meaning that any complainants who want to stop a journalistic or academic investigation from continuing can now call for the ICO to make a written determination on the way in which the data is being collected.

“This will open the door to a far greater number of complaints to the ICO. At best, dealing with these will be very time-consuming and wasteful of resources. At worst, they will result in public interest journalism being delayed or thwarted altogether by a regulator with limited expertise of the media, and who may well lack the resources for such an endeavour.

“My concern is that, even if the ICO does not exercise her powers, the prospect of her doing so will have a chilling effect on editors’ decisions about whether to publish. I am already finding that, in the documentaries that I am making, stories which would have been published a few years ago are now not being published for fear – among media lawyers – that there will be a breach of the legislation.”

Lib Dem spokesman Lord McNally had added his name in support of the amendment tabled by Lord Black and Viscount Colville to delete 164(3)(c). He stated: “I listened very carefully to the noble Lord, Lord Black, and, as the noble Earl, Lord Attlee, said, he gave us food for thought.

“My approach, and the two amendments that I have signed, come from a person whom I know that the noble and learned Lord, Lord Keen, knows very well: the man on the Clapham omnibus. My concern, so very well expressed by the noble Lord, Lord Colville, is that it seems to me, as the man on the Clapham omnibus, that to ask investigative reporters to get prior permission is counterintuitive.

“Again, I would be very interested to hear the Government’s explanation, particularly of Clause 164(3)(c), which my amendment would delete, and how it would impact on investigative reporting.”

Lord Stevenson, Labour spokesman, asked: “Is the regime that currently applies to the press, as set out in the Data Protection Act 1998, still the case in the Bill? In other words, has the regime that has worked well since 1998 been changed in any way by its transposition into this Bill? 

“The case that has been made suggests that, in the rewriting and repositioning of Clause 164, something has happened that has alerted everyone to the point, which was made very well by the noble Viscount, Lord Colville, and the noble Lord, Lord Black.”

Speaking directly after Lord Black, Earl Attlee prefaced his proposals for costs sanctions by stating that he was grateful to Lord Black for “moving his amendment in the skilful way that he did. I hope that my noble friend the Minister has some good answers because my noble friend worried me somewhat.”

Lord Puttnam, Labour, added: “It might surprise the noble Lord, Lord Black, to hear that I think his amendments are important and well worth discussing and crunching out.”

Their concerns were echoed by other peers such as Lord Gordon of Strathblane, Labour, who said the plans were “a dramatic new intervention” and Baroness Stowell of Beeston, Conservative, who had formerly worked at the BBC  who said she was “very worried” by the proposals and their threat to broadcast independence. She said: “I worry that a very simple clause in the Bill, which may look quite innocuous, could put at risk something that is very important to us.”

Lord Keene, undertook to consider other amendments tabled by Lord Black, designed to protect press freedom including;

• Introducing the option for the ICO consulting with the originating publisher prior to making a determination about whether to delist an article from a search engine and then publicising the determination;
• Addressing the overall proportionality of penalties for infringements of the regime relating to distribution of journalistic material via search engines by taking account of the indemnities given by publishers; 
• Protecting journalists and whistleblowers from the serious risk of being criminalised for obtaining and retaining personal data without consent.