Data Protection Bill [HL]

Baroness Hollins Excerpts

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

As to whether Clause 165 should remain part of the Bill, this has been carried over from the Data Protection Act 1998, which singled out the media for special provision of ICO funding for a complainant. Since the acceptance of the Act into law, this provision has not been used once. But, even if it were used, I would object to the clause singling out the media over any other processors of information. If an estate agent or a building contractor, or a member of any number of other industries, were to breach data protection law, the ICO would not have the ability to fund a complainant. I would ask the Minister to look again at whether Clause 165 is needed or whether it would be a threat to free speech.

[Baroness Hollins (CB)]

My Lords, I start by adding my strong support to the elegant amendments of the noble Earl, Lord Attlee, and thank him for his perceptive evaluation of the media storm about Section 40 of the Crime and Courts Act.

My Amendments 170K, 170L, 170M, 171A, 172AA, 172E and 174AA would remove the existing pre-publication staying mechanism currently available to data controllers when they may be processing data for special purposes. The old Data Protection Act required that a determination had to be made by the Information Commissioner before any data protection claim could be brought in court where data might be processed for journalism. This determination, set out in a “determination notice”, would specify whether the data was indeed being processed for the special purpose of journalism.

Any claim which might involve the special purposes could be stayed in this way. This means that someone has no way of accessing the courts to establish if such publication of their personal data was legal—for example, because it was in the public interest—until after it happened. In contrast, people can do this with a privacy claim—and the sky has not fallen in, nor has investigative journalism been affected. Data privacy claims should be no different.

The new Bill currently replicates the process that was set out in the old Bill. Unlike other areas of law, and unlike processing for other purposes, before any member of the public can bring a data protection claim in the courts against a data controller prior to publication, Clauses 164 to 166 of the Bill require the ICO to make a determination as to whether the data was being processed for journalistic purposes. This means that when an individual’s data rights are unlawfully breached for publication, without any public interest justification, they can do nothing to prevent use and publication of that data until the determination process is complete, with appeal. That data could include, for example, private medical records or financial transactions that expose deeply personal information.

In practice, this means that ordinary people are denied the right to challenge in court the legality of the data being processed prior to publication. Moreover, determination is slow. When the Information Commissioner produces the determination notice, it is then subject to appeal by the publisher. Lord Justice Leveson argued that this whole mechanism is wrong in principle, and that it should be removed. This amendment would have that effect, by removing journalism from those purposes to which the stay could apply. Publishers and the public would still have access to court action, and the courts could determine whether the material has been unlawfully processed and, if it has, whether publication is protected in the public interest under the existing exemptions in the Bill.

Journalistic exemptions in the Bill would be entirely unaffected by the amendments. Where breaches are in the public interest and undertaken for publication, journalists remain exempt from all the exemptions listed elsewhere in the Bill. That is right, and it will be protected. However, the additional stay, which prevents victims of data protection breaches by newspapers trying to prevent the damage that would be done by publication before they can argue their case in court, would be removed. In summary, nothing in the amendments will interfere with investigative journalism—that is not my intention. Because this is a complicated area, with many amendments to these clauses, I certainly stand ready to discuss with colleagues the best way forward in this area before Report.

My Amendment 179A would require the Government to proceed with a public inquiry into allegations of data protection breaches by or on behalf of newspapers. Such an inquiry would be similar to the already-agreed second half of the Leveson inquiry. In 2005 it was reported, though only in the Guardian, that thousands of individuals had had their personal data, including private phone data, stolen by or on behalf of newspaper publishers. Noble Lords will recall that Operation Motorman was the scandal that allowed phone hacking to occur, but it was far more widespread than just phone hacking. It affected tabloids and other newspapers alike. Data was illegally harvested by private investigators in the pay of newspapers and used for stories or to hack phones, often without any public interest justification. A whole industry of illegal data theft propped up the front pages and exclusives of some of our most powerful and recognisable newspapers for a decade.

The Information Commissioner published two reports on Operation Motorman, first, about this practice and, secondly, on the findings of the police investigation. These included the revelations that 58 clients or journalists working for the Daily Mail had used private investigators, and that 1,482 transactions were identified between the investigators and Mirror Group titles such as the Daily Mirror and the Sunday People. Rarely was there any public interest justification. For example, the victims of crime were targeted and their partners, their colleagues and even their painters and decorators were targeted, too. Some newspapers even rehired private investigators who had been convicted of illegal data handling.

This is not ancient history. The judge in the Mirror hacking civil trial ruled that the Daily Mirror, the Sunday Mirror and the News of the World used an entirely different set of private investigators hundreds, if not thousands, of times to steal phone billing data and “reverse phone numbers”, and that this was a precursor to hacking their phones. In a new civil action against the Sun, it is alleged that that newspaper continued to use a series of private investigators for illegal activities on an industrial scale all the way up to 2011, if not beyond.

A public inquiry, the Leveson inquiry, was established to investigate these matters, and I gave evidence to part 1. However, part 2, established to investigate the extent of breaches of data privacy and other illegality, and to investigate the cover-up of it, has still not taken place. This requirements of the amendment would be satisfied by the Government proceeding with Leveson part 2.

I believe I am not alone in your Lordships’ House in finding the Government’s positioning and repositioning on Leveson part 2 shameful. In 2011, when the scandal of hacking broke, the inquiry was established in two parts, the first to deal with regulation and the second to deal with illegality and allegations of corruption and cover-up. The Government claimed they were committed to part 2 of the inquiry once relevant trials had concluded. Those of us affected by this conduct took the Government at their word.

A few years ago, though, the Government began to revise their position following heavy lobbying from the press. After this House voted overwhelmingly in support of one of my amendments to the Investigatory Powers Bill last year, the Government faced the prospect of a Commons defeat and announced a consultation on Leveson part 2 on the day of that vote. That consultation was judicially reviewed by a victim of press abuse who had been promised by the Government that part 2 would happen. The Government defended that judicial review by claiming that they had an open mind on the matter of Leveson part 2, but within three months their party manifesto for the 2017 general election pledged to scrap Leveson part 2 altogether.

Today, we are no further forward. The Government have still not published the outcome of last year’s consultation. The integrity of the consultation was questioned, and the Government’s intentions were rather exposed by the manifesto commitment to scrap Leveson part 2, although I gather that Conservative Members of neither this House nor the other place were consulted. Nor were victims consulted, despite previous prime ministerial promises to them on this matter.

I see no alternative but to return to legislation and the role of Parliament to see that the Government stand firm on these matters and do not cave in to the press lobby. I hope colleagues will support this amendment. I would not of course return with it on Report should the Government proceed with Leveson part 2 with the agreed terms of reference before then.

[Lord McNally (LD)]

My Lords, this debate is part of the unfinished business of Leveson in relation to both Section 40 and Leveson part 2. As the noble Baroness, Lady Hollins, explained, we are having to do this not because we are hijacking the Bill but because the Government have used various devices to avoid their commitments on those parts of Leveson. It is unfinished business because sections of the press, for which the noble Lord, Lord Black, is an eloquent spokesman in this House, have deliberately tried to frustrate the will of Parliament. The noble Baroness, with telling eloquence, has spoken for the people who were hurt and damaged by the excesses exposed by Leveson. They do not feel that they have received either closure or justice; nor is there much evidence of the press mending its ways.

I was one of the privy counsellors who signed the royal charter. The coalition Government went out of their way to defend the freedom of the press. Looking back, it is easy to forget just how much public horror, distaste and loathing there was for what was shown to be happening by the Leveson inquiry. Frankly, a Government of the day who had not been interested in the freedom of the press would have had a free hand to deal with it in the most draconian way. So I sometimes resent—not speeches in this House, of course, although they occasionally refer to this—articles in the Times and other papers that see any amendment as an immediate attack on the freedom of the press. We who are tabling these amendments want to strengthen the freedom of the press.

The Conservative Government, freed from the constraints of coalition, have gone back on their word to implement Section 40 and dragged their feet about Leveson 2. They added insult to injury by including the IPSO code in their list of approved codes but ignoring the Impress code, which had been approved by the Press Recognition Panel. The noble Earl, Lord Attlee, explained very well how the charter would have given a defence in the David v Goliath contest often faced by the ordinary citizen.

We are in Committee, so we will listen to the Government’s response to the amendments moved by the noble Baroness, Lady Hollins, the noble Earl, Lord Attlee, and the noble Lord, Lord Black. We will then make our decision on issues to vote on at Report. I listened very carefully to the noble Lord, Lord Black, and, as the noble Earl, Lord Attlee, said, he gave us food for thought, although he often sounds like the boy who murdered his parents and then asked for mercy because he was an orphan. However, there are issues there that need to be considered.

My approach, and the two amendments that I have signed, come from a person whom I know that the noble and learned Lord, Lord Keen, knows very well: the man on the Clapham omnibus. My concern, so very well expressed by the noble Lord, Lord Colville, is that it seems to me, as the man on the Clapham omnibus, that to ask investigative reporters to get prior permission is counterintuitive. Again, I would be very interested to hear the Government’s explanation, particularly of Clause 164(3)(c), which my amendment would delete, and how it would impact on investigative reporting.

--- Later in debate ---

[Lord Keen of Elie]

The noble Lord makes a perfectly good observation about this provision. It brings me to one of the questions posed independently and neutrally by the noble Lord, Lord Stevenson, on whether the provisions of the Bill as drafted simply implement the provisions of the 1998 Act or extend its provisions. The answer is that they do not change the regime found in the 1998 Act except in respect of Clause 164(3)(c). I acknowledge the significance of that provision and I am happy to look again at that issue in light of the expressions of concern I have heard from around the Committee about it.

Some noble Lords also questioned the need for the provision of assistance in special purposes proceedings. Under Clause 165, individuals who are a party, or a prospective party, to special purposes proceedings may apply to the commissioner for assistance in those proceedings. For the application to be accepted, the commissioner must be convinced that the matter is of substantial public importance. There is, as I have implied, an equivalent provision in the 1998 Act. I understand that it has only ever been used once. In my respectful submission, that in itself indicates the effectiveness of the provision. It is not necessary because people know it is there and can be relied on, but only if that very high test of substantial public importance is met. Therefore, we consider it appropriate to retain this as a safeguard for data subjects. It is, I respectfully suggest, an important contributor to maintaining the balance between privacy and freedom of expression that has to underlie all these provisions.

Amendment 179A, spoken to by the noble Baroness, Lady Hollins, would require the Government to establish an inquiry with terms of reference similar to those contained in part 2 of the Leveson inquiry, but in relation to data protection only. As I have mentioned, a consultation was launched to look at Section 40 of the Crime and Courts Act 2013, which also asked whether proceeding with part 2 of the inquiry was still appropriate, proportionate and in the public interest. As I stated previously, it is the Government’s intention to publish a response to that consultation by Christmas; therefore, we do not believe that this amendment is appropriate, given the decisions that are currently being taken on that matter.

[Baroness Hollins]

My Lords, the Minister stated that the response to the consultation will be published before Christmas. Can he further reassure the Committee that it will be published before Report so that noble Lords can reconsider their amendments?

[Lord Keen of Elie]

I am obliged to the noble Baroness. It is the Government’s intention that the consultation response should be published before Christmas. I cannot say that it will be published before Report but we will keep noble Lords advised of any decision with regard to a specific date for publication.

[Baroness Hollins]

If is not to be published before Report, would it be possible for me to meet the Minister to discuss these matters?

[Lord Keen of Elie]

I am certainly open to any meeting that the noble Baroness would wish to engage in to discuss these matters. In so far as I am able to inform her, and indeed the Committee, of developments, I will seek to do so.

Data Protection Bill [HL]

Baroness Hollins Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Monday 6th November 2017 Lords Chamber

[Lord Knight of Weymouth (Lab)]

My Lords, I support the amendments. I remind the House of my interests in relation to my work at TES, the digital education company.

The noble Baroness, Lady Kidron, and the others who have supported the amendment have given the Government a pretty neat way out of the problem that 13 as the age of consent for young people to sign up to “information society services”, as the Bill likes to call them, feels wrong. I have found that for many Members of your Lordships’ House, 16 feels like a safer and more appropriate age, for all the reasons that the noble Lord, Lord Storey, has just given in terms of defining when children are children. There is considerable discomfort about 13 in terms of where the Bill currently sits.

However, I think many noble Lords are realists and understand that to some extent the horse has bolted. Given the huge numbers of young people currently signing up to these services who are under 13, trying to pretend that we can find a way of forcing the age up to 16 from the accepted behavioural norm of 13 looks challenging. Yet we want to protect children. So the question is whether these amendments would provide that solution. That hinges on whether it is reasonable to ask the suppliers of information society services to verify age, and whether it is then reasonable to ask them to design in an age-appropriate fashion. From my experience, the answer to both is yes, it is. Currently, all you do is tick a box to self-verify that you are the age you are. If subsequently you want to have your data deleted, you may have to go through a whole rigmarole to prove that you are who you are and the age you say you are, but for some reason the service providers do not require the same standard of proof and efficacy at the point where you sign up to them. That is out of balance, and it is effectively our role to put it back into balance.

The Government themselves, through the Government Digital Service, have an exceedingly good age-verification service called, strangely, Verify. It does what it says on the tin, and it does it really well. I pay tribute to the GDS for Verify as a service that it allows third parties to use: it is not used solely by Government.

So age verification is undoubtedly available. Next, is it possible—this was explored in previous comments, so I will not go on about it—for age-appropriate design to be delivered? From our work at TES, I am familiar with how you personalise newsfeeds based on data, understanding and profiling of users. It is worth saying, incidentally, that those information society services providers will be able to work out what age their users are from the data that they start to share: they will be able to infer age extremely accurately. So there is no excuse of not knowing how old their users are. Any of us who use any social media services will know that the feeds we get are personalised, because they know who we are and they know enough about us. It is equally possible, alongside the content that is fed, to shift some aspects of design. It would be possible to filter content according to what is appropriate, or to give a slightly different homepage, landing page and subsequent pages, according to age appropriateness.

I put it to the Minister, who I know listens carefully, that this is an elegant solution to his problem, and I hope that he reflects, talks to his colleague the right honourable Matthew Hancock, who is also a reasonable Minister, and comes back with something very similar to the amendments on Report, assuming that they are not pressed at this stage.

[Baroness Hollins (CB)]

My noble friend made a very strong case. The internet was designed for adults, but I think I am right in saying that 25% of time spent online is spent by children. A child is a child, whether online or offline, and we cannot treat a 13 year-old as an adult. It is quite straightforward: the internet needs to be designed for safety. That means it must be age appropriate, and the technology companies need to do something about it. I support the amendments very strongly.

[Lord Alton of Liverpool (CB)]

My Lords, I, too, support my noble friend Lady Kidron. Last week, with her and my noble friend Lord Best, I was able to attend a briefing session with the right honourable Karen Bradley, the Secretary of State. I found that very helpful. We were looking at the Green Paper on internet safety published on 11 October. It is curious that we are here in Committee talking about some of the same issues when that significant consultation is being undertaken by the Government. I hope that when the noble Lord, Lord Ashton of Hyde, comes to reply to the debate, he will say something about how the Government intend to synchronise the discussion of and consultation on the Green Paper that is under way with the moving horse of legislation that is proceeding through your Lordships’ House.

During our discussions last week, my noble friend raised again the duty to protect. I agree with what the noble Lord, Lord Knight, just said about this providing an elegant way forward. I guess that many of us would want to turn the clock back if that were possible, but we recognise that it is not, and this may well be, therefore, a better way to proceed. It is certainly one to which the Government should be giving considerable attention.

While I am on my feet, perhaps I may remind the noble Lord, Lord Ashton, of the amendment that I moved with my noble and learned friend Lady Butler-Sloss during the debate in April on the digital legislation. I particularly draw his attention to col. 40 on 20 March and the remarks made by his right honourable friend the Minister of State for Digital in the other place on 26 April, when he described the question of prohibited material and definitions, which we had argued should be consistent across varying media platforms. They both said that this was unfinished business that would be returned to. I have studied the Green Paper but have not been able to find the solution to that unfinished business, and wonder whether it will be addressed as the legislation proceeds.

Perhaps I may also ask the Minister about the protection of minors. It has been stated again and again, by all noble Lords who have participated so far, including the noble Lord, Lord Storey, that the protection of children should be a paramount consideration at all times. The Minister may recall the case, which I raised with the Secretary of State and in your Lordships’ House, of some young people who had visited suicide sites. I was horrified to learn from the headmaster of a school in Lancashire, where I arrived to distribute prizes, that a child who had visited a suicide site had taken their own life only that morning. What further protections are being provided to require service providers, for whom self-regulation is clearly not enough, to do rather more about that question?

It has been said that parents do not have a chance in this situation; that is absolutely right. As my noble friend Lady Hollins said, young people spend a vast amount of time on the internet. Many parents do not understand how it works. It is therefore crucial that we do all we can to place pressure on the service providers. I remind the House of the advice that Aristotle gave parents. He said that only a bad parent would place their children in the hands of a foolish storyteller. I fear that many of us, maybe inadvertently and without knowing the full consequences of placing our children in the hands of the Twittersphere and the digital world, with all the information that pours into their minds on a massive scale, have placed them into bad hands. We need to do more to protect them. This is what my noble friend is trying to do and I commend her amendment to the House.