My Lords, I will be as brief as I possibly can in moving this amendment and speaking to the group, which relates to paragraph 24 of Schedule 2 to the Bill, in Part 5, and the exemptions for journalistic, academic, literary and artistic purposes. I declare my interest as director of the Telegraph Media Group and draw attention to my other media interests. However, I underline that these amendments
are not simply of importance to what we used to call the print media, but have the support of a range of broadcast and online media organisations as well as the Media Lawyers Association, the News Media Association and the Society of Editors, as the Bill has a very wide impact on them all.
In Committee last week, the Government reiterated their strong commitment to the,
“operation of a free press”,
as a,
“fundamental principle of any liberal democracy”,
in relation to this Bill and journalistic exemptions.
My noble friend the Minister also sought to make it clear that the Bill seeks to preserve the important “balance” between privacy and free speech found in the 1998 Act, the operation of which has been so successful, as well as ensuring that the journalists remain, in his words,
“exempt from compliance with certain data protection requirements where to do so would undermine the operation of a free press”.—[Official Report, 6/11/17; col. 1675.]
These amendments seek to build on those commitments by proposing some ways in which journalistic safeguards can be made clearer and strengthened further. Some of them seek to ensure consistency in application of the journalistic exemption between the 1998 Act and the Bill; some would extend journalistic exemption, but always subject to the Bill’s conditions, to match new requirements of the GDPR which would otherwise threaten freedom of expression and journalism; and some are intended to avert potential exploitation of the new regime, especially where legal action—often on spurious grounds—can bypass the freedom of expression protections crafted so carefully by those in this House under the Defamation Act 2013, a point I highlighted at Second Reading.
The amendments are intended to safeguard investigative journalism, publication and archives, both domestic and international, for all news media, print and online. In particular, they would prevent the Information Commissioner becoming a statutory regulator of the media, with dangerous and unprecedented prepublication powers. Where the accuracy of what has been published is challenged, they would adopt the approach of defamation law, rather than undermining it. I hope that my noble friend will give serious consideration to the issues and suggested amendments.
I turn briefly to the operation of the amendments. Amendments 87ZA, 174A and 174B would mean that the Bill no longer stipulated processing “only” for the special purposes. This is because article 5 of the GDPR, which mandates exemptions for the purposes of journalism and for academic, literary and artistic purposes, does not require that processing take place “only” for those purposes to benefit from the exemptions. If there is ancillary processing, the exemption should not be vulnerable to any claim that it might be lost.
For example, the media should not be penalised under data protection law in this way if, say, the police sought the pre-broadcast disclosure of journalistic material in relation to an undercover investigation because they wanted to see whether the alleged wrongdoing uncovered by the broadcaster’s investigation
merited further police investigation. Furthermore, if broadcast media fund their activities through regulator-approved activities such as Ofcom’s product placement, this should not prevent them benefiting from the exemption.
Amendments 87AA, 87AB and 87AC would amend Schedule 2, part 5 and paragraph 24(2)(a), as the current wording of the Bill arguably represents a narrowing of the application of the exemptions from those in the Data Protection Act 1998, which apply to,
“processing … undertaken with a view to publication by any person of any journalistic, literary or artistic material”.
The amendments would ensure that both the specific personal data and the related material which forms part of the background research are protected.
Amendment 87CA, adding a new subsection to paragraph 24(2), is another aimed at consistency in the transition to the new Act, in this case relating to how to judge where the application of the GDPR principles is incompatible with the special purposes, including journalism—hence the all-important circumstances where the media can rely on the exemption. This amendment would bring the Bill in line with non-binding guidance from the Information Commissioner, which already recognises that media organisations can form the reasonable belief that compliance would be incompatible with the special purposes where it would be, “impractical or inappropriate”.
Amendments 87DA and 87DB to paragraph 24(3) are intended to ensure proper safeguards for journalism and freedom of expression. The provision currently fails to reflect that the exemption applies where the data controller reasonably believes that publication would be in the public interest. In addition, the provision refers to what the controller “must take into account”—quite properly, the special importance of freedom of expression. However, it should also be made clear that the public interest in freedom of expression and information itself, in the widest sense—from the trivial to the most serious—must be taken into account by the Information Commissioner and the courts, again to maintain consistency of approach with the 1998 Act.
Amendments 89C to 89F and 91B address the need for further exemptions, as permitted by GDPR article 85. This is because the GDPR provisions could otherwise have serious, albeit unintended, consequences for all the media. These are additions to the list under Schedule 2, part 5 and paragraph 24(8).
Amendments 89C and 91B are perhaps more procedural and technical in nature. I will come to those but, first, Amendments 89D 89E and 89F raise serious issues concerning the maintenance of integrity of investigations, publications and archives.
Amendment 89D to Schedule 2, Part 5, paragraph 24 (8)(b), would provide a vital exemption from article 36—the requirement for prior consultation set out in chapter IV of the GDPR. Without such an exemption, there would be an obligation to consult the ICO up to 14 weeks or more in advance, where a “data protection impact assessment” indicates that the proposed processing would result in high risk to data subjects in the absence of measures to mitigate that risk. Put simply, this
could be a huge risk to investigative journalism, particularly by broadcasters. It could impact their public interest undercover investigations and use of covert filming techniques, such as when investigating allegations of abuse against vulnerable residents at a care home or conditions at a detention centre.
The existing regulatory codes already require them to believe use of such methods to be necessary in the public interest. It is a dangerous departure of principle from the protections in the Data Protection Act 1998 against pre-publication interference, and is at odds with the fundamental traditions of UK journalism and legal safeguards for freedom of expression. It is wholly inappropriate to require the broadcasters or other media to consult the ICO and seek approval prior to investigations requiring use of secret filming techniques and similar emerging technology, such as drone use or wearable technology. Article 36 could stifle investigative journalism and add yet another unprecedented pre-publication power to the Information Commissioner’s potential armoury of statutory pre-publication tools. That is why the amendment states that there must be an exemption from the article 36 prior consultation requirements, provided that the media can satisfy the exemption conditions set out in the relevant provisions in this part of the Bill.
Amendments 89E and 89F have been tabled to put beyond doubt the public interest protections for journalistic activity and publication across borders and media archives through the freedom of expression exemptions mandated by Article 85. Amendment 89E to paragraph 24(8)(b) in Schedule 2 would add a journalistic exemption consistent with satisfaction of the conditions in paragraph 24 of Schedule 2 from the requirements of chapter V of the GDPR concerning transfer of personal data to third countries outside the European Economic Area or international organisations. Third country transfers, of course, include online publication itself. This exemption would enable international publication by UK online publishers, be they the BBC, the Guardian or any other UK news brand sought out by international audiences. The journalistic exemption is also needed to allow collaborative investigative journalism, swiftly sharing data across borders where appropriate, such as with the Panama papers or, as we have seen just recently with the Paradise papers. The journalistic exemption is also required for communications between the media and their foreign correspondents wherever they might be situated outside the EEA.
Amendment 89F would provide the explicit safeguard for news media archives which is currently lacking from the Bill. This would ensure that media archives, whose role and importance the noble Viscount, Lord Colville, described so well at Second Reading, constitute archiving in the public interest and receive the protection of the exemptions. This would be in line with recital 153 of the GDPR, which provides that the protection to be afforded to freedom of expression and information should apply,
“in particular to the processing of personal data in the audio visual field and in news archives and press libraries”.
There are two procedural but none the less important amendments completing this group. Amendment 89C to paragraph 24(8)(b) would add an exemption to
article 19 of the GDPR, which requires data controllers to inform the data subject about the recipients of personal data subject to rectification or erasure, if requested by the data subject. While exemptions might apply, the media do broadcast and publish corrections and take other measures. It would be entirely inappropriate to say that article 19 might require the provision of information about individual “publishees” and could be in breach of such individuals’ freedom of expression and data protection rights, as well as in breach of privacy notices.
Finally, Amendment 91B is a measure to mirror the improvements made to defamation law and to protect against the undermining of their freedom of expression safeguards, by attempted exploitation of the data protection laws instead. This, as legal expects among you—I am not one—will instantly recognise is akin to the introduction of a rebuttable single publication rule and a limitation period of one year subject to further amendment to the Limitation Act 1980. Any complaint concerning accuracy of material processed for journalistic, academic, literary and artistic purposes can and should be brought promptly. Some complainants already attempt to abuse data protection law by bringing complaints many years after material is first published, when it will be more difficult for the media, as data controller or processor, to substantiate the accuracy of the publication and the veracity of the complaint. To maintain consistency with the defences under the Defamation Act 2013, this amendment proposes that a limitation period be introduced to prevent complaints about accuracy being brought outside a period of one year after the date of first publication. If adopted, the Limitation Act 1980 should be accordingly amended. This time limit would then apply to both ICO enforcement action and legal claims. Such measures are needed to protect against libel claims being dressed up as data protection actions, to the detriment of freedom of expression and information.
10.15 pm
As I said at Second Reading, I am extremely grateful to my noble friend the Minister, and to the DDCMS, for the constructive way in which they have approached the media issues arising in this Bill and the helpful, dialogue that they have maintained throughout. These amendments are proposed in the spirit of that dialogue to ensure that the Government’s clear intention to maintain the correct balance between privacy and freedom of expression and information is as robust and effective as possible. I beg to move.