Data Protection Bill [HL]

Viscount Colville of Culross Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 10th October 2017 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I am going to deal with my concerns about how the Bill might affect journalism and free speech. I declare my interest as a series producer at ITN Productions.

In the fast-changing world of the digital revolution, it is beholden on noble Lords to be vigilant about the way in which our personal data is now so readily available to so many people to be processed in so many ways, more than many of us ever conceived. I am glad that the GDPR has been brought forward and that this Bill protects further the availability and use of personal information. However, I am concerned that these new privacy rights will be balanced with further limitations on the freedom of the press and the ability of journalists to carry out investigative journalism in the public interest, which I believe was one of the original aims of the Data Protection Act 1998.

At the moment, data protection legislation is being used to control unwelcome exposure of incriminating personal information by journalists. We have seen cases such as that of Prince Moulay v Elaph Publishing, in which the original case for defamation was thrown out as not libellous, only for the Prince to instigate proceedings for the incriminating information against him to be removed from the public sphere using data protection law, despite the intention of the original Act being that there should be an exemption for journalism.

I understand the sentiment behind the “right to be forgotten” clause. Of course, many people want their youthful indiscretions to be forgotten and, for most, it is important that they should be. This concept is based on the Costeja v Google Spain case, which stopped links being made to personal information in search results. However, the courts are now being tested to see whether the original information itself can be suppressed.

In the age of fake news, it has never been more important to be able to go back to source material to check original data against more recent updates and deletions. Noble Lords will have heard of click bait, where sites are specifically set up to shock with false information to attract eyeballs—as they call them in the industry—and make money from the resultant advertising. Noble Lords must not suppress the means to refute such fake news and ascertain the truth.

So I am very pleased that GDPR article 17 has an exemption for publication of data for free speech and the holding of archives in the public interest, further safeguarded in article 89. However, Clause 18, which indeed provides welcome protection for many archives held in the public interest—for instance, those for historical, scientific and statistical purposes—does give protection to cover media archives.

My concern is that past media articles are an important source for verifying information. They might hold reports of criminal convictions of the person or information about a politician’s past which, years later, when they are trying to stand for office, might prove embarrassing but informative for voters. Surely business people, voters and many others should have full access to the information in those archives, whether it is embarrassing or not. This information helps them to shape a fuller profile of the person whose reputation they are trying to assess.

In the digital age, there are millions of opinions, but refuting falsehoods or discovering the truth has never been more difficult. The only way to do that is through source material on trusted websites or archives, where the information has been mediated and checked. I suggest that websites holding archives of trusted media organisations should be protected by and covered in the Bill. The inherent public interest in such archives should be explicitly recognised, as provided in the GDPR.

I am pleased that there is an exemption for data processing for journalism in Schedule 2, part 5, paragraph 24. However, in sub-paragraph (2), there is concern that the exemption applies only when the processing of data is used for journalism. If this information, once it has been gathered for journalism, is subsequently used by the regulators or the police, the use of the word “only” will negate that exemption. I ask the Minister to look at that again.

I am also concerned about the extension of the powers of the ICO prior to publication to examine whether information is exempt from data protection provisions because it is being processed for journalism. GDPR article 6 contains an obligation to consult the Information Commissioner, but Clause 164 goes much further. It enhances the power of the ICO to examine the application of the exemptions for journalism prior to publication and unilaterally second-guess editorial decisions made in respect of the provisions in the Bill.

This means that if a journalist is investigating, for instance, people smugglers, involving undercover filming or subterfuge which is deemed to create a high risk to data subjects, the ICO can intervene prior to publication. The commissioner has the power to apply their objective view to the claim, which might overwrite and disregard the reasonable view of an editor. The ICO might, for example, call for the individual being investigated to be notified in advance that their data is being used, or that they should be given access to additional data being held about them as part of the journalistic investigation.

In my view, this is not even consistent with the terms of journalistic exemption. It would result in investigative journalism being delayed or even stopped until the ICO has examined it for compliance with part of the Act prior to publication. The provision could act as a form of censorship. The existing right of the editor to decide whether the story should go ahead in the public interest will therefore be eroded. I suggest that Clause 164 should be amended to ensure that investigative journalism is not chilled by the extension of powers of intervention by the ICO prior to publication.

Finally, I am concerned that there is no time limit on the right to sue in respect of information processed for special purposes, which continues to be retained or published in the media archive. Under the Defamation Act, that limitation was one year from the date of publication. Under this Bill, there is no limitation. Surely, if information is inaccurate, the complainant should sue within a specific period. The longer the case is delayed from the original publication date, the more difficult it is to refute the allegations. The journalist could move on, contact with the original source material might be lost, memories blurred and notes, even those held digitally, mislaid. Complainants must have the right to complain, but there must be a balance with the time period when that can be done. A failure to have a period of limitation will surely be a chilling effect on the publication of information.

I welcome this Bill as an important advance in protecting privacy in the digital age, but I am concerned that some of its provisions do not yet strike the right balance between privacy and free speech. I ask the Minister to take my concerns seriously.

Data Protection Bill [HL]

Viscount Colville of Culross Excerpts

Committee: 6th sitting (Hansard): House of Lords
Wednesday 22nd November 2017 Lords Chamber

The final claim that will certainly be made is this: if Section 40 and my amendments are in force, the media operator will have to pay all court costs, win or lose, unless the claim was vexatious or trivial. What they will forget to tell us is that this will happen only if the media operator is not signed up to an approved regulator. The crucial point is that if they are signed up to an approved regulator the claimant will have to pay all court costs, win or lose. Thus, if a media operator is facing a billionaire Russian oligarch who is threatening court action with huge costs, it will be able to laugh at him and explain how Section 40 works. That sounds rather like press freedom to me.

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a series producer at ITN Productions. I want to talk particularly about Amendments 172A to 172C and whether Clause 165 should stand part of the Bill—all of which relate to the powers of the ICO to investigate special processing. I, too, am very concerned that Clause 164 represents a considerable and troubling extension of the power of the Information Commissioner, which will have a damaging effect on free speech. It will damage not just journalism but academia, art and literature by unleashing a torrent of complaints prior to publication or launch of a work. These amendments will ensure that the powers of the ICO in these matters remain as they are—a situation which has worked well since we have had the Data Protection Act 1998.

In Clause 164(3), paragraphs (a) and (b) indeed make no change. They allow the ICO to investigate and give a written determination on whether the processing of data is for special purposes and publication, and therefore exempt. However, my concern is that paragraph (c) seems to be an important and worrying extension of the power of the ICO. It means that even if she thinks that the data processing is journalism, literature or art she can, in addition, investigate whether the means by which the data is being collected or processed is compliant with the Act. These powers can be used prior to publication, meaning that any complainants who want to stop a journalistic or academic investigation from continuing can now call for the ICO to make a written determination on the way in which the data is being collected. This will open the door to a far greater number of complaints to the ICO. At best, dealing with these will be very time-consuming and wasteful of resources. At worst, they will result in public interest journalism being delayed or thwarted altogether by a regulator with limited expertise of the media, and who may well lack the resources for such an endeavour.

The provision for such ICO inquiries to take place before publication goes against an important principle of our law, which allows for the information to be published and then for the courts or regulators, such as Ofcom, to decide whether there has been an infringement. Clause 164(3), as drafted, suggests that the commissioner is going to make her own judgment of these questions and not simply assess whether the judgment of the data controller—for instance, the editor of the newspaper or the author—is genuine and reasonable.

My concern is that, even if the ICO does not exercise her powers, the prospect of her doing so will have a chilling effect on editors’ decisions about whether to publish. I am already finding that, in the documentaries that I am making, stories which would have been published a few years ago are now not being published for fear—among media lawyers—that there will be a breach of the legislation. In one case, I was told by the media lawyer that I could broadcast a story only if it was already in the public domain—which to me, as a journalist, seems likely to negate the whole purpose of the exercise. I am advised by media lawyers at ITN, the BBC and a number of newspapers, whose views I very much respect, that these new powers of the ICO and other proposed amendments will affect journalists’ investigations in many different ways.

Amendment 172B is intended to ensure that the scope of the exemption continues to apply not merely to information that is due to be published but to information that will inform the final publication. The failure to maintain the existing provision would have the damaging effect that, for instance, a fraudulent businessman who is being investigated could submit a subject access request on the relevant data which had been gathered as part of the story. The result would be that the businessman would be able to find out where the investigation was going and take action to close down that investigation. He would also be able put pressure on the sources of the information that would be revealed by the access request.

I work in television, and a particular concern of mine is the future of secret filming for journalism, which could be threatened by this clause. It would allow the ICO to look into whether the use of recording, without consent, was appropriate or even necessary. It is not clear from the clause what precise test the ICO will apply, but it will involve the ICO making fine editorial judgments, including whether the investigation could or should have been advanced by using less intrusive means. I have carried out many secret filming assignments in my capacity as a producer at the BBC, and I know that the activity is already very tightly controlled to stop fishing expeditions and to ensure that it is aimed directly at and focused on the suspected parties. The BBC code requires clear evidence that the subject of the filming has been involved in wrongdoing. This evidence is rigorously questioned by the lawyers before permission is given to go ahead, and the results of the filming are carefully looked at to make sure that they relate directly to supporting the story.

Unless these amendments are adopted, once the person who is the target of secret filming is told that they are the subject of the story, they could issue a claim or subject access request on the secret filming and delay, or even successfully stop, the story being published. Lawyers at the BBC advise me that some of our important investigations in the public interest would be delayed and maybe in some cases stopped by these new powers. The stories that could have been affected include public interest investigations into wrongdoing, such as those into Winterbourne View and the Rochester young offenders unit or even last week’s BBC “Panorama” on student loan fraud, in which two men were secretly filmed giving advice to prospective students about how to get through a degree by cheating and how to fraudulently collect a student loan.

Perhaps even more problematic will be other people who are not the centre of the investigation but who might get caught up in secret filming or open filming without consent. They could include family members or employees of a company being investigated. These people would not be featured in the final publication or broadcast, but their ability to complain prior to publication would allow them to call on the ICO and deliberately delay or stop an investigation because their data had been collected during the filming. An example is the BBC investigation into the payday lender Wonga, which many noble Lords will know about, whose lending practices were questionable and caused bankruptcy and despair across the country. During the secret filming of the Wonga loan agents, the journalist also filmed the receptionist. She was never going to be featured in the final programme, but her data had been collected and she tried to use it to protect her employers and stop the programme going out. Under Clause 164 she would indeed be able to call in the ICO to give a written determination on the way her data had been collected, and the film would be stopped in its tracks. For the complainant, the time and cost would be minimal—meaning that there is a very low barrier to seeking the help of the ICO.

Other investigations could be thwarted based not just on the data that might be published but on the way the data might be held by the journalist for use in later articles as part of a continuing investigation. Noble Lords may remember the Sunday Times exposure of Lance Armstrong, a man who at the time was seen as the greatest cyclist in history. He was accused by the Sunday Times of taking performance-enhancing drugs. As a result, he took the paper to court for defamation, and it was forced to settle. Under this clause, Armstrong would then be able to bring a data protection complaint in relation to any data that the Sunday Times had collected to support the original allegation that he had taken performance-enhancing drugs. He could argue that the data was inaccurate and should therefore not be held. Following the court settlement it would be open to the ICO to decide whether continuing to hold the data would be in compliance with the legislation. The Information Commissioner could require the paper to dump the data, which she might deem to be inaccurate. In fact, the ability of the journalist on this story to hold on to Armstrong’s data was crucial in allowing the Sunday Times to continue its investigation into Armstrong’s conduct. The paper subsequently published a number of articles to that effect. Eventually, Mr Armstrong confessed that he had indeed taken performance-enhancing drugs and settled the Sunday Times claim that his libel case was fraudulent after all.

--- Later in debate ---

[Viscount Colville of Culross]

If I may put the record straight, it was not a BBC lawyer who advised me.

[Lord Keen of Elie]

My respect for all lawyers remains undiminished.

As the noble Lord, Lord Stevenson, observed, some issues of fundamental importance underlie this; I refer not just to press freedom but to fundamental rights. I therefore have welcomed the contributions to this debate, but I hope that at this time the noble Lord, Lord Black, will feel it appropriate to withdraw his amendment.

Data Protection Bill [HL]

Viscount Colville of Culross Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 13th December 2017 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a series producer at ITN Productions. I thank the Minister for responding so positively to the concerns expressed by myself and other noble Lords from across the House in Committee who were worried about the effect that Clause 164(3)(c) would have on free speech. I am therefore grateful to him for bringing forward government Amendment 162, and I also support government Amendment 50.

I have concerns about my noble friend’s Amendment 50A. It replaces the phrase,

“with a view to the publication”,

with the term “necessary”—which, I fear, would cause huge problems for journalists, authors and academics. The present wording in the Bill allows them to take the view that material can, and indeed should, be appropriately retained, even if it is not for publication. This could be necessary to respond to any possible legal or editorial complaints which might arise from the publication of a programme or article. Surely noble Lords would want these complaints or legal actions to be responded to as fully and accurately as possible. The ability to defend a publication surely supports the act of publication itself. This amendment would not allow data to be retained for those purposes.

I am also concerned that data collected which might not be used in the original publication could be crucial in supporting subsequent stories on the subject. In Committee I referred to the investigation by the Sunday Times of drugs cheating by the cyclist Lance Armstrong. Initially, Mr Armstrong sued the paper for defamation. But, despite settling, the newspaper persevered in its investigations, which ultimately led to Mr Armstrong confessing that he was indeed a drugs cheat.

Keeping hold of data in many investigations can be crucial, even if it is not necessarily obvious at the time whether it should be so. The Hillsborough inquiry and subsequent stories over 20 years relied heavily on unbroadcast BBC footage from the Hillsborough football stadium at the time of the tragedy. It provided vital information for subsequent inquiries and inquests. Surely noble Lords would not want that sort of material, which might seem unimportant at the time, to be deleted. I therefore ask the Minister to stick to his guns and reject Amendment 50A.

[Lord Lester of Herne Hill (LD)]

My Lords, we had rather strong debates in Committee and I am not going to repeat any part of those. I have thought about how I could best help the House at this stage, and I think it is by stating what I believe the law to be and why Amendment 50A, if carried, would put the Bill in breach of the Human Rights Act and the European Convention on Human Rights.

When the Bill was first introduced, the Minister certified, as is required under the Human Rights Act, that in his view it was compatible with the convention rights; those being the right to free speech, the right to personal privacy and the right to equal treatment without discrimination. The amendments that the noble and learned Lord, Lord Keen, has introduced in this group would pursue the convention rights and, if carried, as I hope they will be, make sure that the Bill continues to be compatible with the convention rights.

In the light of the speech by the noble and learned Lord, Lord Brown, it would be quite unnecessary and wrong for me to go through the relevant law in any detail. But perhaps I can help the House a bit by giving a very brief summary of why I consider the government amendment compatible, and the amendment put forward by the noble Baroness, Lady Hollins, or those supporting Hacked Off and all the rest, incompatible.

The position is this. Article 10 of the convention protects the right to free speech and freedom of the press, subject to necessary and appropriate exceptions. One exception is, of course, personal privacy, which is guaranteed by Article 8 of the convention. The test the convention uses, as interpreted by the European Court of Human Rights, is a pressing social need test. The starting point is free expression and any restriction or limitation on that right must be in accordance with legal certainty and must be proportionate. The Human Rights Act requires that all legislation, old and new, including this Bill, must be compatible with the convention rights. It also requires courts to read and give effect to the convention compatibly with those rights.

Together with the noble Lord, Lord Pannick, I edited a textbook, the third edition of which we published in 2009. It has a whole chapter on free speech and another on privacy. What I am trying to summarise now, we spelled out in that large textbook some years ago. I am trying to help the House by giving a legal opinion on what I consider the law to be. I very much hope that the noble and learned Lord, Lord Keen, will correct me if I have got it wrong in any respect, because the House needs to know that if it were to support Amendment 50A, it would, in my view and that of the noble and learned Lord, Lord Brown, put the Bill in breach of the convention and the Human Rights Act. The Minister could then no longer certify that it was compatible with the convention rights.