dplp - magnus boyd

The journalistic exemptionSection 32 of the DPA provides anexemption for journalists to haveto comply with their obligationsunder the DPA. The exemption islimited to circumstances where thejournalist is processing data forjournalistic purposes and with aview to broadcast or publication ofat least some of the data. Thejournalist must also have areasonable belief that the story is inthe public interest and thatcompliance with the DPA isincompatible with his or herinvestigation and publication. It isright that the ICO’s guidancefocuses on the exemption and theconcept of the public interest thatpermeates every aspect of itsapplication.

The public interestIn his report1, Lord Justice Levesonnoted that, ‘the ‘public interest’ is[…] not a monolithic concept. Noris it the particular property of the

press or any other organisation orsector.’2 The ICO’s guidance stressesthat there is no definitive test ofwhat is in the public interestalthough weight is attached to theexisting industry code definitionsprovided by the Independent PressStandards Organisation (IPSO),the Office of Communications(Ofcom) and the BBC’s EditorialGuidelines. The public interest isfact sensitive and will differ fromcase to case, and each claim willneed to be justified on its ownmerits. Comparable materialpublished in the past may berelevant but not determinative.

However, undue emphasis isplaced on the ‘general publicinterest in freedom of expression,’and the fact that, ‘The ICOrecognises that there is an inherentpublic interest in freedom ofexpression itself, regardless of thespecific content of the story.’ Theaffirmation of the ‘inherent’ publicinterest in the freedom ofexpression risks an approachdivergent to the courts. InCampbell, Baroness Hale notedthat, ‘There are undoubtedlydifferent types of speech, just asthere are different types of privateinformation, some of which aremore deserving of protection in ademocratic society than others.’3

Insufficient emphasis oncompeting public interestsThe point that the ICO’s guidanceshies away from is that there arecompeting public interests - all ofwhich need to be weighed in thebalance on a case by case basis asarticulated by Lord Steyn in Re. S4:First the journalist mustacknowledge that neither his or herright to freedom of expression hasprecedence over the data subject’sright to privacy. The rights underArticles 8 and 10 are of equalvalue. Neither can be regarded as a‘trump card’ or to have, ‘inherent’or ‘presumptive authority.’

Second, where the values underthe two articles are in conflict, thecourt must conduct a ‘parallelanalysis’. As the then President ofthe Family Division Sir MarkPotter put it, ‘The exercise to beperformed is one of parallelanalysis in which the starting pointis presumptive parity in thatneither Article has precedence overor ‘trumps’ the other. The exerciseof parallel analysis requires thecourt to examine the justificationfor interfering with each right andthe issue of proportionality is to beconsidered in respect of each. It isnot a mechanical exercise to bedecided upon the basis of rivalgeneralities. An intense focus uponthe comparative importance of thespecific rights being claimed in theindividual case is necessary beforethe ultimate balancing test in termsof proportionality is carried out.’5

Third, the justifications forinterfering with or restricting eachparty’s right must be taken intoaccount and are likely to includethe following:(a) Is there a pressing social needfor the restriction of one party’sright?(b) Are the reasons for restrictingeither party’s right relevant andsufficient?(c) Is the restriction to one party’sright proportionate; being nowider than is necessary to protectthe other party’s?(d) How confidential is theinformation? The moreconfidential it is, the harder it willbe to justify disclosure.

As the ICO’s guidance makesclear, each case is ‘necessarily factsensitive.’6 However, the guidancealso asserts that, ‘It is in the publicinterest to have a free andindependent media informing thepublic about current events andproviding information of generalinterest to the audience.’ Thisarticulation gets dangerously closeto suggesting that what is

JOURNALISM

In September 2014, the InformationCommissioner’s Office (ICO)published guidance to editors andjournalists on how to comply withtheir obligations under the DataProtection Act 1998 (DPA). Thelong-awaited guide was producedin response to a recommendation inthe Leveson Report. Leveson’sInquiry was criticised for its focus onthe traditional media, rather than thenew and social media that nowdominates journalism and theconsumption of news, and thesame concern extends to the ICO’sguidance. Magnus Boyd, Partner atHill Dickinson, examines the ICOguidance, the competing interestssurrounding the journalisticexemption under the DPA, and themodern media.

15Data Protection Law & Policy - February 2015

Exemptions and competinginterests in a modern media

However, the exemption onlycovers information processed forjournalism so if an organisation isalso using the same informationfor any other purpose, theexemption cannot apply.

The division betweeninformation gathering forjournalistic purposes as opposed tolobbying or public relations isblurring. The relevance of theICO’s guidance is likely to decreasein the ensuing haze.

ConclusionEmily Bell noted that, ‘Lord JusticeLeveson more than once referredto the internet as ‘the elephant inthe room.’’10 It looks increasinglylikely that the ICO’s guidelines willsoon be trampled into dust by thatparticular elephant as less and lessjournalistic activity takes place inthe media organisations for whomthe guidelines were produced.

Magnus Boyd PartnerHill Dickinson, Londonmagnus.boyd@hilldickinson.com

1. ‘In discharge of its functions and duties topromote good practice in areas of publicconcern, the Information Commissioner’s Officeshould take immediate steps, in consultationwith the industry, to prepare and issuecomprehensive good practice guidelines andadvice on appropriate principles and standardsto be observed by the press in the processingof personal data. This should be prepared andimplemented within six months from the date ofthis Report.’ Part H, Chapter 5, para 2.72 andpage 1113, Chapter 7, Volume 3 of LordJustice Leveson’s Report following the Inquiryinto the culture, practices and ethics of thePress, November 2012.2. 3.1, Volume 1 Lord Justice Leveson’s Reportfollowing the Inquiry into the culture, practicesand ethics of the Press, November 20123. Campbell v. MGN Limited [2004] UKHL 22.4. Re. S (a child) [2005] UKHL 47.5. A Local Authority v. W [2005] EWHC 1564(Fam).6. Christopher Hutchinson (formerly known as‘KGM’) v News Group Newspapers and others[2011] EWCA civ 808, para 267. T v. BBC [2007] EWHC 1683 (QB), para 17.

8. Tietosuojavaltuutettu v. SatakunnanMarkkinapörssi Oy and Satamedia Oy ECJCase C‑73/07 16 December 2008.9. Sugar (Deceased) v. BBC [2012] UKSC4.10. ‘The Leveson inquiry is irrelevant to 21st-century journalism’, Emily Bell, The Guardian,28 November 2012.

JOURNALISM

interesting to the public is in thepublic interest. It also underminesthe principle that, ‘It is necessary toevaluate the exercise of that right[Article 10] not as a matter ofgenerality, but in the particularcircumstances of the case.’7

Fourth, the ‘ultimate balancingtest’ of proportionality must beapplied to each party’s competingrights. The ICO’s guidance invokesthe concept of proportionalitywithout giving it sufficient weight.The guidance states that, ‘anyconsideration of what is in thePublic Interest must involve anelement of proportionality,’ when itis a fundamental tenet of everystage of the evaluation process.

New forms of journalismThe ICO’s guidance is alsochallenged by the plurality ofmodern news gathering. Whilethere is no definition of journalismin the DPA, the ICO has rightlychosen a broad interpretation tocover the disclosure to the publicof information, opinions or ideasin any forum or media8 andincluding anything published in anewspaper or magazine orbroadcast on radio or television9.

Citizen bloggers may be able toinvoke the journalism exemption ifthey are posting information orideas for public consumptiononline, even if they are notprofessional journalists and are notpaid to do so. Non-mediaorganisations may also be able toinvoke the exemption if theirpurpose in processing the specificinformation is to publishinformation, opinions or ideas forgeneral public consumption: thiswill count as a journalistic purpose.

Data Protection Law & Policy - February 201516

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The pointthat the ICO’sguidanceshies awayfrom is thatthere arecompetingpublicinterests - allof whichneed to beweighed inthe balanceon a case bycase basis asarticulated byLord Steyn inRe. S