My Lords, I will speak to the amendment in my name. I am grateful to the noble Earl, Lord Attlee, who has added his name in support. I will also speak in support of the amendment in the name of my noble friend Lord Skidelsky.
First, I want to explain why the Bill in its current form does not provide an adequate balance between privacy and freedom of expression, despite claims to the contrary by some parts of the media this weekend. Freedom of expression is essential to hold power to account and to expose wrongdoing, and it must be protected. However, the public also need to be protected from those who might seek to abuse such freedoms with the primary business purpose of selling newspapers.
The need for balance was recognised by Lord Justice Leveson in his 2012 report, and these amendments seek simply to implement some of the Leveson recommendations on data protection. It is worth remembering how some newspapers exploited private data in the past. Operation Motorman was a lengthy police investigation. The Information Commissioner reported on it in 2006, detailing the kinds of information that private investigators were buying unlawfully or obtaining by deception, including bank records, medical records, tax records, benefits records, phone records—thousands of transactions obtained from just one private investigator and commissioned by journalists. The victims whose data had been illegally accessed were not celebrities or public figures being investigated
for genuine public interest reasons. They were just ordinary people with tenuous connections to those in the public eye: the sister of a well-known MP’s partner; the mother of a man once linked romantically to a “Big Brother” contestant; the decorator who had once worked for a lottery winner; and the GP who was doorstepped by a Sunday newspaper in the mistaken belief that he had inherited a large sum from a former patient. All these were victims of data misuse, and we are still learning how widespread those practices were.
Some argue that that is history and that newsroom practices have changed since the Leveson report, but the economic pressures which drove newspapers to desperate practices before are even more acute now. Many of the same editors and senior executives are still in place, and many in this House will remember similar promises of reform made by newspaper editors in the wake of the Calcutt report nearly 25 years ago. Does the Minister agree that this time, it is our responsibility to act decisively to protect the public from the less scrupulous elements of the press?
There is an exemption in the Data Protection Act 1998 for journalism, and this is reproduced in the Bill, but the exemption as drafted effectively offers a blank cheque to publishers and would allow them to breach data rights with little protection for the public from abuse. The GDPR is clear: exemptions should be made only when they are necessary to reconcile the right to protection of personal data with freedom of expression. My amendments are designed to ensure that this balance is properly preserved. They have been drafted by a senior QC and are based on recommendations made by Lord Justice Leveson, himself an independent senior judge, after a public inquiry in which he heard evidence and arguments from all sides, including the newspaper industry. I should declare an interest here and remind the Committee that I gave evidence to the Leveson inquiry.
9 pm
The amendments would require that a publisher which has declined to be subject to recognised independent regulation must be subject to stricter standards of data protection. Publishers which have rejected independent regulation cannot be left to breach the data rights of citizens. There must be safeguards, and the amendments bring the safeguards into line with Leveson. They offer an incentive to publications to join or establish a genuinely independent and effective self-regulator, exactly as Parliament intended in its response to Leveson and when, through royal charter, the independent Press Recognition Panel was set up. Some publishers have tried to persuade us that IPSO is an independent regulator—their supporters will doubtless make the same point today—but they are wrong: it is not independent, it is entirely owned and controlled by the newspapers themselves. As the Media Standards Trust found in an independent analysis, the publishers control IPSO’s rules, code of practice, budget and sanctions. Its independence is an illusion.
Amendment 87A is very straightforward. At the moment, the Bill would allow an exemption for personal data which is being processed solely “with a view” to publication. The amendment would reinforce privacy protection by requiring the processing of personal
data to be “necessary for” publication before the exemption applied. Leveson recommended that the exemption should be strengthened precisely in this way, and I look forward to the Minister’s acceptance of that.
Amendment 87C would require that any breach of citizens’ data rights under the exemption is proportional to the public interest. The regulation specifies that a balance must be sought between free expression and privacy rights. The amendment is necessary simply to codify that balance in the exemption.
Amendment 89B and 91A would separate those publishers which have joined an independent regulator from those which have not. Those publishers which have joined an independent regulator would retain access to the full list of exemptions as originally drafted. This is because their membership of such a regulator already provides the public with protection. Those publishers which have decided not to join a recognised regulator would have access to a restricted list.
Before anyone protests, this list still guarantees freedom of the press, safeguards investigative journalism and protects confidential sources, but it limits those publishers’ ability to breach other areas of data protection law. Publishers which have rejected independent recognised regulation would lose exemptions from data protection principles 5(1)(b) and (d), which require data to be processed fairly, for legitimate purposes and to be kept accurate; article 13(1), (2) and (3), which require citizens to be notified of data obtained about them; and article 14 (1) to (4), which require information to be provided to citizens where it is acquired from a third party. The amendment, however, insists that the exemption is maintained where compliance could identify a journalistic source.
On article 15(1) to (3), which allows citizens to make subject access requests for data held on them, the amendment would retain an exemption from 15(1)(g), which allows details of a source of data to be requested, to protect journalistic sources. The publishers which had rejected independently recognised regulation would lose the exemptions under article 16, meaning newspapers would be obligated to correct any inaccurate data, and article 17(1) and (2) on the right to erasure, because a public interest exemption already exists in the article itself.
I also support Amendment 89A in the name of the noble Lord, Lord Skidelsky, to which he will speak in more detail. This would replace the code designation of IPSO’s editors’ code with any code adopted by a regulator which meets Leveson’s criteria for independence and effectiveness; in other words, as judged by the Press Recognition Panel. It is disturbing that, as written, the Bill would deprive the independent Press Recognition Panel of its role and responsibility to approve legitimate independent regulators. I trust that the Minister will confirm that it was an oversight to name IPSO in the Bill, to the detriment of any regulator approved by the Press Recognition Panel.
This amendment puts the Press Recognition Panel back in the position of approving regulators by simply de-designating the editor’ code and, instead, designating the code of any regulator which meets the Press Recognition Panel’s test for approval. Should IPSO seek recognition at any point, the code it enforces
would, of course, qualify and I would urge it to take those steps. Finally, the amendments in this group show the continuing cross-party support for the Leveson inquiry recommendations. I hope the Minister will agree with me on their merit and timeliness: if not now, when?