Leveson on Data Protection in the UK: What Do Allegations of Phone Hacking Have to Do With Data Protection?
Editor’s Note: This post is a joint submission to BakerHostetler’s Media Law Bytes & Pieces blog.
The much-anticipated Leveson Inquiry on the Culture, Practices and Ethics of the Press (“Leveson Report” or “Report”) was released on November 29, 2012. The inquiry leading to the Report was initiated as a response to ongoing reports and allegations of systemic phone hacking by the English media.
The 16-month inquiry by Lord Justice Brian Leveson sought evidence from many, including victims and law makers, current and former prime ministers, all leading to the recommendations in the Report. The leviathan tome – nearly 2,000 pages in length – censures the culture of the media in the United Kingdom for faults including its “tendency . . . vigorously to resist or dismiss complainants,” difficulties in securing an appropriate apology or correction, disregard for accuracy, failure of compliance, and—not least of which—an environment that allowed phone hacking to exist. Its calls for the end of the current state of self-regulation of the print media by the Press Complaints Commission (PCC) and for independent oversight is a top-level take-away from its findings. As of December 11th, it is being reported that the replacement to the PCC’s commissioner will be in place in early 2013.
Soon after the issuance of the Report, another story has emerged and seen increased attention, the Report’s potential effect on data protection laws. Lawyers as well as politicians and journalists alike share concerns that the proposed reforms could chill investigative journalism. In addition, some of the proposed reforms would have broader effects beyond the media’s gathering and use of personal data. Overall, the changes seek to significantly strengthen the power of the Information Commissioner’s Office (ICO), particularly in its relation to the press, while narrowing exceptions for the press. In fuller detail, there are at least five significant changes affecting data protection laws called for in the Leveson Report, and a host of recommendations to the ICO. The report seeks to:
- Narrow an exemption to the UK’s Data Protection Act 1998 (DPA) specific to journalistic use from one where data processing is allowed with a “view to” publication, to one where processing is “necessary” for publication. It would remove language granting special weight to freedom of expression when a data controller considers whether the publication is in the public interest, and it would change the consideration whether compliance with the DPA is incompatible with the purpose of journalism from a subjective belief (the reasonable belief of the data controller) to an objective belief that the likely interference with privacy is outweighed by the public interest in publication.
It also seeks to narrow the set of requirements from which the use is exempted. For example, the data subject’s “right of access” would not be part of the exemption. The Leveson Report is careful to clarify that the proposal to remove the right of subject access from the exemption is not meant to affect the protection of journalists’ sources. However, there does not appear to be any attempt to provide a mechanism to discern when data that is subject to an access request relates to the source, which may present a challenge. The further concern is that such requests could be used to disrupt a journalist’s investigation or obtain information before publication.
- Clarify that the DPA Provides Compensation for ‘Pure Distress’ In Addition to Pecuniary Loss.
- Repeal Certain Procedures That Relate to Journalism and Instead Grant More Power to the Information Commissioner. The Report hints that the DPA could be amended to give the power to the Information Commissioner (IC) to decide whether publication is acceptable when there are challenges under the DPA.
- Permit Imprisonment for Up to Two Years. The Report calls for allowing terms of imprisonment of up to two years for offenses of unlawful obtaining of personal data. The amendment would be applicable generally and not simply to the press. Leveson sees this amendment as a response to the thriving black market in personal data. This amendment was initially halted by lobbying by the press arguing that it would hamstring their ability to conduct investigations. Leveson stresses that a high regard for public interest defenses to this kind of offense should alleviate the concerns of journalists. The Report seeks to bring into force another amendment for such an enhanced defense for public interest journalism.
- Extend the Prosecution Power of the Information Commissioner’s Office. The Report recommends extending the prosecution powers of the IC to include any breach of the data protection principles outlined in the DPA. It advocates for a new duty for the ICO to consult with prosecutors and reconstituting the ICO with a board of commissioners rather than one IC. The concern here relates to the increased power in the hands of an entire board, which could have an effect on efficiency and independence, particularly where required to consult with prosecutors.
The Report also makes recommendations to the Information Commissioner in its Executive Summary. Among these recommendations, the Report suggests that the ICO take immediate steps to publish policies on its functions as well as guidelines and advice for the press to observe in the process of personal data and for individuals on their rights in relation to the use by the press of their data. It also suggests that the ICO update Parliament on the effectiveness of new measures in its annual report to Parliament, adopt guidelines published in September 2012 for prosecutors on assessing the ‘public interest’ in cases affecting the media, and engage with the police to prepare a long-term strategy in relation to alleged media crime with a view to inclusion of the ICO where appropriate.