My Lords, the government amendment is excellent and I support it. However, it does not go far enough. I have therefore introduced a manuscript amendment.
My Amendment 50A would simply add two further provisions—my Amendments 51 and 52—into government Amendment 50, and would do no more than what Lord Justice Leveson recommended: to rebalance data protection law and prevent speculative trawling for stories. Operation Motorman was a police investigation in 2003, which I have mentioned before in debate, and it found that private data was being stolen on behalf of newspapers. That information, taken from private, medical, police, local authority, bank and many other confidential records, was used for stories or to hack phones. Those findings were considered by Leveson, who also reviewed the submissions of media organisations, and he was able to cut through some of the rhetoric—the kind of rhetoric that we have seen splashed across several newspapers today. He found that data protection law was fundamentally imbalanced in favour of publications at the expense of the public. That is not right. Just as the Human Rights Act strikes a balance between Article 10 speech rights and Article 8 privacy rights, so the GDPR obliges us to strike the same balance on data protection. This is not just following our own precedent; it is the right thing to do and is a legal requirement.
This amendment would implement some of Leveson’s recommendations. First, it would change the test for the exemption to apply to ensuring that the data processing in breach of the individual’s rights was necessary for future or continuing publication rather than undertaken just with a view to publication, as in the DPA and currently in the Bill. This is Leveson
recommendation 48A and would protect the public from fishing operations when journalists process data without any specific intention to publish. Let me be clear: the data itself would not have to be published but the processing would need to have been done with an intention to publish—that is all. Secondly, this amendment would ensure that the exemption should be available only where the likely interference with privacy resulting from the processing of the data is outweighed by the public interest in publication. This properly strikes the balance between privacy and freedom of expression—this is Leveson recommendation 48C—and this balance is specified in the GDPR.
These amendments are the product of representations from all sides at the Leveson inquiry which sought a compromise—a way to protect the free-expression rights of publishers and to ensure that the public are protected. I thank the noble Lords, Lord McNally and Lord Stevenson, who have supported this amendment, and I also acknowledge assistance from a number of sources including the victim-representative organisation Hacked Off. I hope the House will support these reforms to bring balance to data protection law.