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03.01.2018

Proposed UK data protection bill poses a threat to investigative journalism

By Emil Weber

Media representatives and experts are criticising a new data protection bill being discussed in the UK Parliament for it is a possible threat to investigative journalism.

Houses of Parliament, UK The British Parliament in London

The bill was introduced to the UK Parliament on 14 September 2017. Its second reading at the House of Lords took place on November 22. According to the Information Commissioner’s Office (ICO), the bill amongst other things provides details on how the EU General Data Protection Regulation (GDPR), which enters into force on May 1st 2018, is applied in the UK.

A point of concern is the proposed increased power of ICO on media handling private data, in particular prior to the publication of information, as formulated in article 164.

Ms. Gill Phillips, Director of editorial legal services at Guardian News & Media and member of the European Centre for Press and Media Freedom Legal Affairs Committee​​, says that one of the other points of concern relates to a proposal within the new bill to impose a “necessity test for processing personal data for future or continuing publication”.

“If enacted, (it) would appear to severely limit investigation, research, preparatory work and publication”, Ms. Phillips told the European Centre for Press and Media Freedom (ECPMF).

Mr. Roy Greenslade, journalism Professor at London City University and former editor at the Daily Mirror, in a Guardian article recently challenged both the potential editorial judgements which would be required by the ICO, and the time recourses spent by the media seeking compliance with the bill. Mr. Greenslade said the changes would be “a form of prior restraint on the activity of journalism”. He further stressed that the bill risks criminalising whistleblowers and journalists “for obtaining and retaining personal data without consent”. 

ICO: It does not create power to prevent publication

In the most recent December briefing to the House of Lords, the Information Commissioner’s Office said that it was disappointed that a clause of the article was scheduled for removal with Government amendment.

“This (removal) means that it would be possible for privacy rights to be overridden even where there was no need to do this to protect freedom of expression including the special purposes”, ICO said.

“[The 164,3,c] clause does not provide the Commissioner with any far reaching new powers that would affect the processing of data for the special purposes as has been argued by some during Committee Stage. It does not create a power for the Commissioner to prevent publication”, ICO said in its annexe to the Lords. “It serves to cure a drafting defect in the existing data protection regime that has resulted in individuals being unable to rely on their data subject rights even though these rights would not be incompatible with the special purposes”.

“Acute threat to freedom of expression”

Ms. Gill Phillips of The Guardian says that “there’s been a concerted effort […] to change the current balance in the existing legislation between freedom of expression and the right to privacy in such a way as would create an acute threat to freedom expression”.

“The proposals would deprive all those involved in journalism, (as well more widely as those involved in literature, the arts and academia) from the current freedom of expression and information exemptions”, Ms. Phillips told ECPMF. “What is really worrying is that if these proposals became law, they really would make it very difficult for UK papers and broadcasters like the Guardian and the BBC to undertake the sort of investigations done into the Lux Leaks, and the Panama and Paradise Papers”.

Mr. Greenslade wrote that in balancing the right to data protection against the right to freedom of expression, the deciding factor must be public interest. “But that balance has been observed for the best part of 20 years without undue controversy. So why the need for change?”.

“It’s all a bit gloomy […]”, said Ms. Philips. “The bill is being used as another attempt to force UK media to join an approved regulator or lose access to any sort of exemption at all, as well as potentially facing paying punitive legal costs even if they win legal cases brought against them”.





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