Some rogue Lords are trying to weaponise the Data Protection Bill to crush press freedom

by

Source: Getty

The so-called Paradise Papers have again torn wide the schism between society’s haves and have-nots.

The legality and ethics of such tax affairs are this week’s political football: a few red cards and a couple of points scored before a finger-pointing match analysis, and hopefully, justice.

Regardless of the minutiae, the journalists who are presently poring over the reams of leaked documents took a decision that releasing them – the private affairs of very wealthy individuals – was in the public interest.

That’s how, in free, western democracies, press freedom is understood. An informed decision is made about the significance and value to the public of the confirmed information; it is published; and if the publisher is factually wrong, the courts decide the outcome retrospectively.

But there are forces in the upper house of parliament trying to metamorphose this cornerstone of our democracy. Earlier this year, I warned that the government’s interpretation of the EU’s General Data Protection Regulation (GDPR), known as the Data Protection Bill (DPB), could be used to shoehorn in unwelcome policy, such as the hated Snoopers’ Charter. But even the most precipitous analyst couldn’t have anticipated the DPB being used in an attempt to crush press freedom.

Consumer rights and wrongs

The GDPR is a solid piece of overdue regulation aimed at providing a data protection regime suitable for the digital age. It will empower individuals to control their personal information through strengthening consumer rights, secured with a compliance regime backed by heavy fines.

When handling personally identifiable information about consumers, firms need explicit consent to hold or process that information. The subject has the right to be informed of its use, and to object, erase, or restrict the processing of it.

But what if a tranche of confidential but explosive information, such as the Paradise Papers, falls into the hands of journalists? The subjects are consumers after all.

The GDPR text stipulates that, regarding journalists handling data, member states should apply domestic law as it stands. Presently, under the outgoing Data Protection Act, a specific exemption (section 32) regarding processing of data for the “special purposes” of journalism, art, or literature has existed since 1998.

The DPB legislation, as proposed by Matt Hancock, also provides an exemption for journalists who access and store personal information without consent when exposing wrongdoing.

In other words, if the Bill is applied as originally intended, little would change. If a journalist is handed information regarding an individual, assuming it is found to be in the public interest, he or she could publish it as they see fit.

M’lud

However, a two-pronged attack, courtesy of a coterie of Lords, could very well produce a chilling effect on press freedom if successful.

Among them, Baroness Hollins, a crossbench peer, has tabled amendments to the Bill to tighten the public interest exemption currently granted to journalists who handle private data, citing citizens’ need for protection from publishers that abuse press freedom to “sell newspapers”.

Under the proposed amendment, journalists would only be exempt from the DPB if the “likely interference with privacy... is outweighed by the public interest in publication”. The onus would be on the publisher to prove this.

By their very nature, investigations can often involve breaching privacy to get answers about wrongdoing.


Baroness Sheila Hollins thinks publishers abuse press freedom to “sell newspapers” (Source: Getty)

Having immunity under a public interest defence allows journalists to avoid prosecution for simply doing their job.

The structure for the DPB provides for penalties of up to €20m, as per the GDPR. Threatened with such an egregious fine for potentially breaching data merely by investigating, news outlets – already tugging at the purse strings – simply won’t pursue promising leads for fear of financial consequences. What’s more, it would tip the balance of public interest and freedom of expression too far in the direction of privacy, protecting only those who can afford a good lawyer.

Unimpressed

Further, another peer, Lord Skidelsky – an associate of Max Mosley – is attempting to shoehorn the newly-minted Impress regulator into the Bill. In his ammendment, if news outlets don’t sign up to an “approved regulator” – of which Impress is the only one – they will not be granted any exemptions or immunity when handling data.

The overwhelming majority of publications, including this one, already abide by the Independent Press Standards Organisation code, which has not yet applied for approved status.

Impress, with such prominent titles on its books as the Bideford Buzz and alt-left clickbait reel The Canary, was set up following the Leveson inquiry into press standards. Its status as an independent regulator, which was upheld by the High Court last month, is contentious because the majority of its funding comes from a family trust set up by Max Moseley , an individual well known for his run-ins with the press.

While independent in name, Impress is funded and run by those with grievances against elements of the press. Senior figures at Impress have well-documented links to Stop Funding Hate, a group that encourages boycotts to cut off advertising revenues from newspapers to which they object. There is no formal relationship between the two organisations, but the head of Impress, Jonathan Heawood, posted Tweets comparing the Daily Mail’s editorial position to fascism and promoted a campaign to stop companies advertising in certain newspapers. Stop Funding Hate say the are simply engaged in "mobilising consumer power". 

Forcing news outlets to abide to a fledgling regulator would amount to state regulation of the press in all but name. How can journalists hold power to account, when that very power dictates the rules of publishing?

The centre cannot hold

These propositions border the absurd.

The Data Protection Bill is a well grounded piece of legislation fit for protecting consumers from those who wish to exploit them.

The fact that it is being used as a vehicle to quash the media speaks volumes more about those we must hold to account than the state of journalism.

Presently in committee, the likelihood of the amendments getting through the Lords, let alone the Commons, is to be seen.

It is surely obvious that it is in the public’s interest for journalists to continue in their work without financial repression.

In an age in which the press has all but lost control of the means of distribution to social media; in which trust is eroded and fake news pervasive; when local journalism has all but evaporated while advertising revenues plummet, the proposed amendments are more than just an affront.

They must be stopped.

Elliott Haworth is business features writer at City A.M.