Data Protection Bill [HL]

Lord Black of Brentwood Excerpts

Monday 14th May 2018 Lords Chamber

[Baroness Cavendish of Little Venice]

My Lords, I do not think anybody can listen to that description without being worried about the state of the press. There is no point pretending that everything is perfect. As a former and current practising journalist, I would not. I welcome the narrowing of the scope that the noble Baroness, Lady Hollins, has suggested, particularly the exclusion of local newspapers, but I suggest that in recognising the importance of that she has also recognised the significant burden that the kind of wide-ranging inquiry she is proposing would place not only on those papers but on all the others that would be covered by the remaining scope.

The last time I had the temerity to speak in this debate, the noble Lord who spoke after me said that he had heard quite enough from journalists, thank you. Actually, there are very few journalists in this House and, I suggest, very few people who understand just how difficult the task of investigative journalism is. Although the issues we are immediately concerned with in the amendment are about the salacious nature of journalism, I fear that even this amendment would touch on some of the important issues that I, as an investigative journalist, have dealt with.

I won the Paul Foot Award for exposing miscarriages of justice in the courts. As a result of that the Labour Government changed the law, I am pleased to say. I was also involved in the exposure of the Rotherham sex-grooming scandal at the Times with Andrew Norfolk, who was referred to earlier. I believe that Andrew Norfolk’s view about Section 40, as expressed by the Minister, is very important. He is at the front line of investigative journalism and understands what that would actually mean in practice. This should not be just about revenge. If we are going to legislative effectively, we have to think about exactly what we are trying to achieve.

The noble Lord, Lord Prescott, suggested that nothing has changed since his experiences. I suggest that a great deal has changed, and other Members have referred to that. The landscape is different. IPSO is a tougher regulator. I was so disturbed by some of the events in Manchester that I contacted IPSO to find out how it had dealt with them and how many complaints had been made. In fact—I think the noble Lord, Lord Kerslake, would agree—only one complaint was made to IPSO about the Daily Star; that complaint was upheld. There may be a problem, as he suggests, in that people could not trust exactly which publication they were talking to but we need to take that into account when we are reflecting on this.

We have heard today and in subsequent readings of the Bill about the significant new powers to be given to the Information Commissioner. I asked the Minister a question, which arose out of my ignorance, and was shocked to hear the scope of the new powers that are being so rapidly extended. We need to reflect on that again. As the noble Lord, Lord Lipsey, said earlier, one of the powers the Information Commissioner will get under House of Commons Amendment 109 is to review journalistic application of data protection laws. I would rather wait and see how that pans out. I suggest to the noble Lord that that will put significant pressure on the press.

I do not like public inquiries. They tend to be a last resort for Governments who do not know what to do. They are extremely expensive and work only when they have a specific end in mind.

My real fear about the amendment is that the specific end that many of its supporters have in mind is to reopen precisely the questions and amendments we have been debating and which have been defeated in the House of Commons, in particular those relating to Section 14 of the Crime and Courts Act. If we launched yet another public inquiry, of which the public would not be greatly supportive, we would reopen a series of questions, some of which would go back over old ground. I appreciate the promise of the noble Baroness, Lady Hollins, to move forward—she is right on that—but we would open the door again to people who are keen to impose enormous costs and burdens upon the major newspaper groups. It would expose those groups to having to pay malicious damages in groundless, malicious lawsuits.

Let me remind noble Lords of the history of this House. When I arrived here I thought it was about defending free speech. I totally accept the concerns that have been raised—I do not believe that everything is perfect—but this amendment is not going to move us forward.

[Lord Black of Brentwood (Con)]

My Lords, standing on one leg will at least ensure my brevity. I declare an interest as deputy chairman of Telegraph Media Group.

I agree entirely with the comments of my noble friend Lord Cormack and the noble Lord, Lord Pannick, about the advisability of sending this amendment back to the House of Commons. Were we to do so, we should remember a few points on the substance of the noble Baroness’s amendment.

First, we should always bear in mind that the amendment would produce yet another inquiry covering the same ground that has been ploughed over not only by the first Leveson inquiry but by three police investigations, at least three Select Committee inquiries, a Joint Committee of this House, the US Department of Justice and, in this country on the question of corporate liability, the DPP. There is little left to uncover.

Secondly, since Leveson reported, there has been a genuine, wholesale change in press regulation. We have moved from a voluntary complaints handling service, chaired by my noble friend Lord Wakeham, to a system of tough, legally enforceable regulation with strong powers of sanction. I say to the noble Lord, Lord Lipsey, that it is those tough legal powers which IPSO possesses that mean there could be no backsliding to the standards of the past.

Thirdly—this an important point we all need to bear in mind—since IPSO introduced a mandatory arbitration scheme in the past few weeks, there are virtually no lawful recommendations of Leveson that have not been introduced. It has produced a sea change in how newspapers are run, managed and deal with complaints, and in how journalists are trained and monitored.

Fourthly, since the first Leveson inquiry, the situation facing the press has changed dramatically. I note the noble Baroness seeks to cut out the local press from this but all publishers, including national ones, are under huge and sustained commercial pressure, which will not abate. It is a struggle for survival on a day-to-day basis, which will be made all the more complicated by having to wind the clock back 10 to 15 years to rake over a world which, frankly, no longer exists.

Fifthly, the biggest threat today to the sustainability of high-quality journalism comes from Google and Facebook, which are not even mentioned in the amendment. If we go down this route, in 20 years’ time people will ask why on earth this Parliament insisted on endlessly rerunning the repeats of an ancient black and white drama rather than looking at how journalism could survive in the global digital environment.

I have always been taught that this House must try to understand that, as an unelected Chamber, it needs at least to try to understand the realities of the outside world and take note of the will of the people. During a consultation on what is, in effect, this amendment, the people spoke in huge numbers and, by an overwhelming majority, rejected it. For all the reasons that I set out today, so should we.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I know that my noble friend—

Social Media: News

Lord Black of Brentwood Excerpts

Thursday 11th January 2018 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, I join others in thanking the noble Baroness for securing this very important and timely debate. As it impacts on the media, I declare my interest as executive director of the Telegraph Media Group.

The digital revolution has been the most extraordinary transformation in the way that knowledge and news are transmitted since the arrival of the printing press in the 15th century, when information housed for centuries in manuscripts in monasteries first became publicly available. The result was an eruption in learning from past texts, theological ideas and astronomical theories that changed the world. Now we have a second shift in knowledge, which is just as powerful as that, with an explosion both in the production of content and in global access to that content, which has changed out of all recognition the way we communicate, do business, assimilate news, and indeed think and act. The next revolution, in artificial intelligence, will mark a further fundamental shift in the use of that information. The consequences of that are impossible to predict.

I welcome all that because anything which spreads knowledge across the globe is a good thing, but we have to be clear at the same time about the consequences for our society and our democracy. The giants that have powered this—Google and Facebook—are barely two decades old. They started off, as the noble Baroness said, as tech companies and, quite rightly in my view, were able to undertake the early exploration of the potential of the internet and the digital world largely free of regulation or legal restraint. But the world has changed fundamentally in those 20 years and these companies have in effect become public utilities. As we heard just now, Facebook’s active users now number over a quarter of the world’s population. For the commercial media, and the existence of an independent press, that has profound consequences because of the migration in advertising spend. As the noble Baroness also pointed to earlier, ad revenues have shifted dramatically online. It is estimated that, by 2020, more than 70% of all advertising spend will be with just Google and Facebook, with programmatic advertising fuelling fake news sites and other harmful content.

Ironically, the best antidote to the problems we have encountered with fake news is a free and independent media, which must remain the custodian of democratic debate and scrutiny. News media publishers therefore have a vital role to play in online content creation—indeed they are already the biggest investors in it. Nearly 60% of investment in UK original news content comes from newsbrands, and publishers now invest at least £100 million in digital services. But the companies benefiting from that investment are of course the global tech giants which rely on content from news brands to power their services. Content from UK news brands drives around a billion social media interactions a year, and eight of the top 10 most shared UK websites on social media were UK news media sites. As the New Statesman succinctly put it recently,

“most media organisations are now tenant farmers on Facebook’s estate”.

So we have the irony that the advertising revenues that fund the trusted news that people want are diminishing rapidly and its providers are heavily regulated, while the platforms and the social media that feed on them are almost wholly unregulated and growing exponentially. That disparity will be made much worse as a result of the amendments to the Data Protection Bill that the House passed last night—I had to say that just for the sake of the noble Lord, Lord McNally. Not least as a result of that, the stage is set for the growth of fake news here, fuelled by advertising supply chains described recently by Marc Pritchard of Proctor & Gamble as “murky at best”.

In conclusion, technology has changed the face of the world and, in spreading knowledge and information, has been a source of great good, but with power comes responsibility, and it is surely the responsibility of all those involved in regulation and lawmaking both to ensure the financial sustainability and independence of free media producing real news in this country and to tackle the issues of liability for illegal content, enforcing copyright and defamation and ensuring the fitness and transparency of the advertising supply chain that will ensure that real, verified news continues to thrive as part of a diverse and vigorous digital environment.

Data Protection Bill [HL]

Lord Black of Brentwood Excerpts

Report: 3rd sitting Hansard: House of Lords
Wednesday 10th January 2018 Lords Chamber

is a contribution to public discussion and argument.

[Lord Black of Brentwood (Con)]

My Lords, I hope that for the last time on this Bill I declare my interest as executive director of the Telegraph Media Group, and I draw attention to my other media interests in the register.

Amendment 127A, which I shall speak to first, is, as we have heard, an attempt to bring in by statute part 2 of the Leveson inquiry, but of course it is not quite Leveson 2 because this time there is no inconvenient mention of the role in the events of the past of some politicians and the police, who are noticeably absent from the scope of this amendment. So the target is four-square the press, and I believe that those who back the amendment are happy cynically to sweep everything else under the carpet.

I have four points to make. First, another inquiry is completely unnecessary because there genuinely is nothing left to unearth which has not been gone into in microscopic and comprehensive detail and been covered during the years of inquiries and investigations, as my noble friend Lord Hailsham said. Yes, bad things went on in a small number of places, but the full force of the criminal and civil law leading to prosecutions and often eye-watering amounts of compensation, as the noble Lord, Lord Pannick, said, along with rigorous judicial and parliamentary inquiry, has been brought to bear on them.

We had Leveson part 1, which cost taxpayers £5.4 million at the height of austerity and cost the core participants many tens of millions of pounds in legal costs. We should remember that Leveson had judicial powers of inquiry greater than those given even to Chilcot, who was investigating an illegal war in which hundreds of thousands of people died. We have had three exhaustive police investigations, with more people working on them than investigated the bombing at Lockerbie, in which over 200 souls died, costing the same taxpayer another £43 million. We have had three parliamentary inquiries by Select Committees in another place, one into press regulation by our own Communications Committee and one by a Joint Committee. There was a forensic investigation by the United States Department of Justice into voicemail interceptions and payments by public officials, after which it declined to prosecute. There has also been an investigation here into corporate liability in relation to data offences. After detailed consideration of that, the DPP said that no action was to be taken.

I cannot think of a comparable situation where so much has been done to get to the truth. So it is little wonder that Sir Brian Leveson himself, in concluding a ruling in the course of part 1 on 1 May 2012, questioned its value, saying that it would,

“involve yet more enormous cost (both to the public purse and the participants); it will trawl over material then more years out of date and is likely to take longer”,

to complete. I agree with that.

It was said in Committee, and has been hinted at here, that one of the issues that needed to be looked at again was Operation Motorman, despite the fact that Leveson took evidence on it and made recommendations. However—this goes to the heart of the matter—that concerned journalistic activity prior to 2003, 15 years ago. Does anyone believe that going over all that material again will be in any way fruitful, especially when many of the people involved will have left the industry? Some of them have died, and at least some will have forgotten the circumstances around actions that took place at the turn of the century.

My second point is that since the events that were at the centre of Leveson 1 took place, there genuinely has been a sea change in the regulatory framework surrounding journalism and publishing, which makes an inquiry unnecessary. In the past five years, the Press Complaints Commission, of which I was once director, has been closed and IPSO put in its place. I do not think that this is the time for a debate about IPSO, but it is an organisation with real powers based in civil law, which means that it is a regulator able to extract real penalties, far removed from the conciliation service that the PCC offered. Perhaps not visible to the naked eye, IPSO has also brought about, as I know from personal experience, a huge transformation of the internal complaints handling and governance procedures of newspapers.

My noble friend Lord Attlee mentioned the arbitration scheme. He should know from checking his facts that IPSO does now offer a low-cost arbitration scheme. The claimant fee for an initial ruling is just £50—I do not think you can get much more low-cost than that—and a maximum of £100 if the full process is used.

[Earl Attlee]

And how many cases has it arbitrated?

[Lord Black of Brentwood]

The scheme has only just come in following a pilot, so we need to give it a bit of time to see whether it will take effect.

Building on the issue of public interest, my third point is that I do not believe the industry can afford the distraction of such a huge inquiry at a time when many parts of it are struggling for survival. On one level, there is the sheer cost. Leveson 1 cost the industry many tens of millions of pounds in legal fees and management time. Any follow-up inquiry of this sort would, as Sir Brian himself intimated, be even longer, even more complex in view of the time that has elapsed and even more expensive. Under the terms of the amendment, it would impact on every part of the media, including the local press and the magazine sector, which were completely cleared in Leveson 1. The amendment puts those proved innocent back in the dock. Indeed, its terms are so wide that it would even draw in the international media, such as Buzzfeed, Reuters and the Huffington Post, as well as broadcasters including the BBC. Quite apart from the cost, there is the profound distraction that it would entail for those who are seeking with great speed to change their business so that they can survive in the digital age.

The spectre of yet another inquiry is a toxic threat to a free and independent press. I have lost count of the number of times during the passage of this Bill I have heard from those who said it was appalling to suggest—which I never have—that they do not believe in press freedom; that they were champions of press freedom through and through. Maybe, but I say to them: if you will the ends, you have to will the means. Setting up this inquiry is absolutely not willing the means for the survival of the free media in this country.

The issue of tumultuous change leads me to my fourth point. This amendment points very much to the past, one long hauled over. I know that bad things went on but we should be desperately trying to point to the future. One problem with the first part of the Leveson inquiry was that it ignored the reality of the new media environment and global competition in news. The world that this amendment seeks to investigate has gone. We should be looking now at how we can support free media by working out how best to regulate the currently completely unregulated online platforms of Google and Facebook, rather than heaping yet more burdens on a part of the media that is more heavily regulated than anywhere in the western world, constantly scrutinised and buckling under serious commercial pressure. It is time to draw a halt to this and look to the challenges of the future.

I turn briefly to Amendments 147 and 148 in the name of my noble friend Lord Attlee, which attempt to bring in a version of Section 40 of the Crime and Courts Act 2013. These are deeply pernicious amendments and would, I say to my noble friend, have a destructive impact on our free press, not just national newspapers but the local press, the magazine and periodical business, and the international media. The so-called process of cost shifting, which lies at the heart of this, means that all newspapers and magazines not signed up to a state-approved regulator would be liable to pay for the other side’s costs in an action for a breach of data protection, whether they win or lose the case. Because data touches on virtually every aspect of the news operation—from the genesis of a report to its ultimate archiving—a legal action relating to almost any journalistic activity could be dressed-up in a way that would take advantage of this malignant law. It would open the floodgates to hundreds of baseless claims that would put the very existence of many newspapers, particularly the local press, in grave jeopardy.

The aim of this is to use the law to blackmail—I use the term advisedly—publishers into a system of state-approved regulation. Punishing newspapers for telling the truth as a ruse to impose such controls is wholly inimical to press freedom and alien to democracy. In the current situation, the problem is even worse because the faux regulator “approved” by the Press Recognition Panel is bankrolled by the anti-press campaigner Max Mosley. My noble friend Lord Attlee asked about state control. As he knows—he and I have talked about it—the Enterprise and Regulatory Reform Act 2013 gives this House the power to change the charter by a two-thirds majority. However, in many ways even that is a red herring, because Parliament can vote at any time to overturn that and change the terms of the royal charter in a way that would extend state control of the press.

Given that the publishing sector has made it clear that it will never join an approved regulator, this amendment would have the most profound impact across all journalism, but particularly on investigative reporting. It would give anyone who wanted to suppress a journalist’s inquiries a blank cheque to bring a legal action, knowing that they would not have to pick up the cost. Very few publications would ever let a case get to court because of the crippling costs involved, and would either have to stop investigating the moment that a legal action was threatened or be forced to apologise for printing something that was true. This would be particularly pertinent in investigations where there could be multiple legal actions. For instance, had this provision been in place, it would have been impossible for the Telegraph to conduct its investigation into MPs’ expenses—perhaps some Members of this House would be entirely happy about that.

For all publishers, there would be serious commercial consequences at a time when the vast majority of the industry is struggling. It is inevitable that some newspapers would go out of business as a result of just a handful of cases brought under my noble friend Lord Attlee’s amendment, with disastrous consequences for the plurality of the media. I wonder whether he really wants “Attlee’s Law”—as I have no doubt it would become known—to be responsible for closing newspapers, journalists losing their jobs and investigations being stopped in their tracks?

[Noble Lords]

No, no.

[Lord Black of Brentwood]

I hear noble Lords disagreeing, but I have to tell them that it is true. If you are a struggling local newspaper making barely any profit, one or two actions brought under this provision would bankrupt you.

Many other serious legal issues arise from this amendment relating to the European Convention on Human Rights, which the noble Lord, Lord Pannick, has already dealt with. It is for this reason, and all the reasons I have outlined, that Section 40 has been roundly condemned as an assault on free speech by virtually every international press freedom organisation, including Index on Censorship, the Committee to Protect Journalists, the World Association of Newspapers and the International Press Institute. It is why, rightly, the Government undertook a comprehensive consultation on whether to introduce it last year.

In closing, whatever that consultation says—and I agree that it would be quite wrong to support this amendment in the absence of the Government’s response—Section 40 remains pernicious in principle and would be disastrous in practice for the free and independent media that I believe we all want to see flourish in this country. I hope my noble friend will not press his amendment.

Data Protection Bill [HL]

Lord Black of Brentwood Excerpts

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

[Baroness Hollins (CB)]

My Lords, I thank the noble Lords, Lord McNally and Lord Blencathra, for supporting this group of amendments, which flow directly from three fundamental principles with which I believe the majority in your Lordships’ House will agree. First, we are entitled to the same rights over our personal private data as we are to our personal privacy and family life; secondly, a healthy democracy requires that journalists are free to expose corruption, incompetence or wrongdoing in high places; and thirdly, it is imperative that we protect citizens from those who might seek to abuse those protections and in doing so cause great personal distress.

Perhaps it would be helpful to offer some context here. Last week, several of the many foot soldiers who have assisted newspapers to obtain information illegally came into Parliament to describe the sheer scale of that abuse at a meeting for a group of parliamentarians. Two of them have written to noble Lords supporting these amendments. Their revelations were extraordinary, going far beyond what is in the public domain, and not just confined to tabloid newspapers. We heard how individuals of interest to the press were remorselessly targeted in the quest for stories—ordinary people, whose personal and private data was harvested and exploited, not to advance the democratic ideal of public interest journalism but to sell more newspapers. I do not know whether these practices have stopped, but new titles are still being implicated. Even if they have stopped, the competitive pressure on newspapers makes it possible that they will start again. We heard how hard it was for these whistleblowers to speak up and how others employed to engage in similar illegal practices have been silenced with money. I publicly applaud their courage and note the extraordinary stress and fear that they live under because of their positions. They were being employed to do illegal acts at the behest of newspaper proprietors and editors. It was not about freedom of speech—it was an abuse of power. The main perpetrators were not the foot soldiers, yet they are the most likely to be held to account. That is why we need adequate protection for the public, and for journalists, who may be prevented by the editors from speaking up.

The Bill quite properly imposes constraints on how businesses, institutions and even charities can use our private data, but it will allow the rules to be broken under certain circumstances. It is our responsibility to scrutinise the Bill to ensure that those who are permitted to break those laws—to breach the data privacy rights by which everyone else is bound—are in fact acting in the best interests of democracy and not simply on a journalistic whim: to put it crudely, a fishing trip, or something purely for personal or corporate gain.

In that spirit, this group of amendments would achieve a number of things: to address the current imbalance in the Bill whereby the newspaper’s right to publish overrides a citizen’s right to a private life; to enhance the protections in the Bill for public interest investigative journalism; to implement recommendations in the Leveson report in respect of data protection law; to protect the public from data misuse; and, finally, to provide an incentive for newspapers to sign up to an independent regulator so that the public can have faith that their interests are being safeguarded.

This group of amendments, working together, follows the recommendations of Sir Brian Leveson’s report in respect of data protection legislation, specifically the special purposes exemption and his recommendations to reform the Data Protection Act 1998 in line with public interest. When these recommendations were put to the Government in 2012, their response was to ask us to wait for the right legislation to be debated in Parliament. This is the right Bill.

Amendment 53 removes the existing clause in the Bill that gives the right to free expression precedence over the right to privacy. In Committee, the noble and learned Lord, Lord Keen, argued that removing the clause that elevates free expression above privacy would be incompatible with the GDPR. However, my advisers suggest that article 85 of the GDPR allows for exemptions only where they are necessary to reconcile the protection of personal data with the freedom of expression. There is no special importance for free expression; the rights must be balanced. Our default position must surely be compliance with the GDPR.

Amendments 54 and 56 are designed to ensure that when public interest is being considered for the purpose of the journalistic exemption, the codes assist journalists whether or not their publication is governed by one of the designated codes. The present wording would mean that, for example, a Guardian journalist—whose publication is not governed by any of the codes mentioned—would not have to consider any of them. Changing two of the words in the Bill—“must” to “may” and “relevant” to “appropriate”—provides more flexibility.

I move on to Amendments 59 and 64. Leveson said that, to protect investigative journalism and sources, all publishers should continue to enjoy several important exemptions. However, after hearing evidence from lawyers, newspapers and victims, Lord Justice Leveson concluded that a number of exemptions in the 1998 Act were superfluous to the purposes of investigative journalism and should be removed to protect the public from abuse, and could be done so at no risk whatever to genuine public interest journalism. These amendments offer a compromise.

Where Leveson recommended that certain exemptions be entirely removed—recommendation 49(a) to (f)—my amendments would retain them for newspapers that have demonstrated their commitment to accountability by joining an independent press self-regulator. Furthermore, having listened to the noble Lord, Lord Black, in Committee, I have tried to reflect his wishes by including some new exemptions in Amendments 60, 62 and 63 for such newspapers. Belonging to a self-regulator that has been recognised under the Leveson system is the mark of a publication that understands the need for independent, effective and transparent accountability. Such publishers should be entitled to the full list of exemptions, because the public can have faith in their commitment to public interest journalism.

However, neither we nor the public can have faith in publishers that continue to insist on marking their own homework. These amendments would allow those publishers to keep the exemptions necessary for genuine investigative journalism in the public interest and to protect their sources. But they would lose access to those exemptions that Leveson deemed to be superfluous and open to abuse.

Publishers committed to genuine investigative journalism have nothing to fear from these amendments. If they wish to enjoy access to the longer list, they need only join a recognised independent self-regulator or bring their own self-regulator up to the minimum standards of effective, independent scrutiny and redress that the public have a right to demand. I will not go through each of the exemptions to which publishers would lose access should they reject independent regulation as it would detain your Lordships’ House for too long—they are listed in the amendment itself. Moreover, they are listed in the Leveson report, and cover such basic requirements as for data to be kept accurately.

Amendment 217 would ensure that these provisions would be passed into law on Royal Assent, so that the Government could not use the same tactics of executive non-commencement as they have done previously, going back on commitments on press reform.

[Lord Black of Brentwood (Con)]

My Lords, in speaking to Amendments 59 and 64 I remind the House of the declaration of interests that I made on the previous group of amendments.

It will not surprise noble Lords or the noble Baroness that I am wholly opposed to these amendments, which are pernicious in their effect. This is because they fly in the face of the GDPR, which under article 85, as I understand it, mandates us to ensure that there are exemptions for journalistic activities. The amendments set their face against a successful domestic legal regime established by the 1998 Act which, thanks to the work of Gareth Williams and his colleagues on the Labour Front Bench at the time, has worked so effectively for two decades to balance rights to privacy and free expression. They single out legitimate journalism for special punishment in breach of the Human Rights Act. Above all they are simply a crude form of bullying—that is the best word I can use—to force the press into a state-sponsored system of regulation.

It is not only the national press that would be affected by the noble Baroness’s amendments but the whole of the local press, from the Maidenhead Advertiser—a great newspaper—to the Barnsley Chronicle, and many thousands of magazines such as Reader’s Digest, Country Life and Angling Times. It would also stifle international media, including the Wall Street Journal and Huffington Post. What these many thousands of publications have in common is not that they have been intruding on individual privacy, harassing people or anything of that kind, but simply that they do not want to be part of a system of regulation established by the state and changeable by politicians. They want to be part of a system of self-regulation which has existed in this country for 300 years.

That judgment has not been entered into lightly; it is a matter of deep-seated belief. Even Sir Brian Leveson, whose name has been bandied around a great deal in these debates, expressly acknowledged it as principled. It is also a choice which is entirely lawful. If these amendments were passed they would wholly undermine a fundamental tenet of public law—that it is unlawful to punish someone who has done nothing wrong. Given that the choice of publishers to be part of the Independent Press Standards Organisation and not of Max Mosley’s regulator is both principled and lawful, it is impossible to see how singling them out for special treatment could ever be compatible with the ECHR and the EU Charter of Fundamental Rights. I do not believe this House would want to put itself in such a position.

Nor should this House—the defender of our democratic values—want to introduce a legal regime which would undermine legitimate investigative journalism, and that is what these amendments would do. As we heard with the last group of amendments, journalistic exemptions are absolutely vital to enable investigation to take place and to develop. The Telegraph’s exposure of MPs’ expenses, for example, would have been impossible without these protections because it relied on handling of data. Is the noble Baroness really saying that she wants to put on the statute book laws that would make it impossible to subject this House to such scrutiny? I do not expect so.

These are contentious issues which arouse great passion, as we saw with the last group of amendments, which is one reason among many why they should not be played out in a highly technical Bill about data protection and one which is rightly constrained both by the terms of the GDPR and the Human Rights Act. The Bill as amended in Committee—building on the successful operation of the 1998 Act and making it fit for purpose in a digital age—is carefully crafted and balances rights to privacy with the equally fundamental right of free expression. It protects both individuals and free speech. The House will interfere with that balance, which is the foundation stone of our democracy, at its peril.

Data Protection Bill [HL]

Lord Black of Brentwood Excerpts

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

[Lord Prescott (Lab)]

My Lords, I cannot give this House a legal opinion but I can give an opinion based on experience. I declare an interest: I attended the Leveson inquiry because I was on the end of illegal tapping of my phone. Public interest was not defined there; it was defined by the editors of the papers. They said it was not illegal, but clearly it was.

I support what the noble Baroness has said tonight. She is absolutely right and I am glad that there is a lot of support for her amendment. However, I am concerned that it addresses only a small part of what Leveson recommended. He made recommendations about public interest—it is an important issue and I welcome the amendment—but even though we all voted unanimously for the royal charter and the proposals of Leveson, we keep hiding away from debating his main recommendations. He made 37 recommendations and only 12 have been implemented. We have taken a small step forward but to have a serious debate about public interest you have to cover all the things that Leveson recommended—and we do not do that. We have to ride on the back of a single piece of legislation, and the answer always comes that it is not realistic to put such a proposal in the legislation. I am glad that tonight there has at least been agreement—presumably by both sides, for whatever political reason—that we have to move to do something about the important issue of public interest.

I will not go on about that. I have a couple of questions for the Minister, which I hope he will answer. I wonder whether we are taking into account here the hacking actions that are going on at present in the courts. The Government have always said that they will wait until the courts have finished, but hacking actions are continuing. Statements have been made in court that hacking is still going on, involving and paid for by some members of the press.

The royal charter involves the monarchy in politics. It is where the divisions are and why I resigned as a privy counsellor. I thought it was designed to keep the monarchy out of it, but now it is right in the middle of it as we get more and more into whether we are for or against the Leveson proposals. Is it still the Government’s policy that they will wait until all the court trials have finished before they give their view of the many recommendations in Leveson? Is it the position that the Government do not want to accept Leveson’s recommendation for a second inquiry into the relationship between the police and the press, which is still at the heart of many of these problems at the present stage?

To show that I am intellectual, I read in the Times—which is not a paper I support—an editorial headed “Free Speech in Peril”, which covers the very things we are discussing at the moment. It states:

“A number of peers have seized on a chance to curb press freedom by meddling with new data protection legislation. They should desist”.


I hope that tonight we will not desist but will carry it through.

The charge levelled in the Times—that this is an attack on press freedom—is signed by 70 newspaper editors. In fact, that means it is signed by seven owners of different papers. Seven cabal owners decide to describe Leveson as a big attack on press freedom, so why is it that the same papers that object to interference, in regulatory form or by government, all sign up for press regulation in Ireland? Every one of the papers we are talking about, which tell us that we are threatening freedom, have now signed up recently. I do not know whether they are less democratic or whether their freedom is threatened in Ireland, but they are the same people. It is hypocrisy.

Have the Government looked at what they have done in Ireland? A Minister is in charge in Ireland, not an independent regulator as proposed by Leveson. In Ireland a government Minister—a direct political person—decides whether the press is acting in a responsible way and, presumably, in the public interest.

The amendment is a small step forward and there is a long way to go yet, without a doubt. I hope that we will give more consideration to those factors. Basically, there is a lot more to be done. I am thankful that the Government, as I have heard, are supporting the proposal of the noble Baroness, Lady Hollins. It is a small step but there is a lot more to be done. These threats to press freedom are not coming from the politicians but from the press—and it is about time we took account of that.

[Lord Black of Brentwood (Con)]

My Lords, as these amendments deal with the media, I declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register.

I will say a brief word first about Amendment 50 and the other government amendments in this group. These amendments seek to deal with a number of the problems raised in Committee by noble Lords across the House, as my noble friend said. I have a number of times during the course of the Bill commended the Government for their commitment to consultation on all the issues impacting on media freedom and for their willingness to discuss them with interested parties. I am grateful to my noble friend the Minister for the way in which he has approached these issues and I strongly support the amendments.

Manuscript Amendment 50A, like Amendments 51 and 52—especially in combination with later amendments with which we will deal in due course—point, I fear, in absolutely the other direction. The issue surrounding them has been eloquently and cogently set out by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and the noble Lords, Lord Lester and Lord Pannick. I could not improve on what they have said in any way, shape or form. Those amendments would, in short, cripple investigative journalism for all the reasons the noble Lord, Lord Pannick, set out.

Above all, they would create a deeply repressive data protection regime for all those involved in journalistic, academic, literary and artistic activities. It is not only journalists on national newspapers, who are so clearly targeted by these amendments, who would be punished but the local press, broadcasters, academics, film producers, playwrights, book producers and many others. As they all use data regularly in the course of their activities, it would make their day-to-day work almost impossible. This House, which contains so many people drawn from academia, the arts and the world of literature—I see many around me here today—has always prided itself on championing the UK’s creative industries. How ironic that we should even be debating these repressive amendments, which would be a body blow to the entire sector. They would place all those who work in it—many tens of thousands of people—at a huge disadvantage compared with their colleagues and competitors in the rest of Europe and elsewhere in the world.

On the amendments concerning the designation of codes by which the media should reference the public interest in publication, Amendments 54 and 56 seek to downplay the role of the Ofcom code, BBC guidelines and the Editors’ Code of Practice, all of which the 1998 Act sought to safeguard, and Amendment 55 would sweep them out completely. Amendment 55 seeks to give a statutory regulator, the Information Commissioner, power to determine codes of practice and guidance for the purposes of operating the journalistic exemptions and applying the public interest criteria within the Bill. This, again, is a significant departure from the terms of the 1998 Act, which has worked so well.

The Information Commissioner could choose not to determine particular codes even though they are recognised by the courts and elsewhere in legislation. She could even draw up and determine her own codes and guidance, without any reference to the long-established regulators of the broadcasters and the press, which would then have legal status. Even to a non-lawyer such as me, codes and guidance with legal status determined, drawn-up and administered by a statutory regulator is a system of statutory press regulation in the making—to which the vast majority of Members of this House say they are opposed—and is therefore a dangerous step which we should not take.

[Lord Low of Dalston (CB)]

My Lords, in the absence of the noble Baroness, Lady O’Neill, I shall speak in support of Amendment 58, which is in the names of the noble Baroness, Lady O’Neill, the noble Lords, Lord Lipsey and Lord McNally, and myself.

The Bill contains an exemption for publication which is for journalistic, academic, artistic and literary purposes and is in the public interest. In determining whether publication is in the public interest, regard must be had to,

“any of the codes of practice or guidelines listed in sub-paragraph (5)”,

of paragraph 24, which is in Part 5 of Schedule 2. The codes of practice listed in sub-paragraph (5) are the,

“BBC Editorial Guidelines; … Ofcom Broadcasting Code; … IPSO Editors’ Code of Practice”.

The purpose of Amendment 58 is to add to that finite list a further, open-ended category of codes to cater for any other relevant code of practice approved by the Press Recognition Panel. The immediate effect of the amendment would be to add the Impress standards code to the list of journalism standards codes recognised in the Bill, because so far it is the only one which has been approved by the Press Recognition Panel.

The Bill rightly recognises that journalists may sometimes have occasion to process and publish people’s personal data. On the rare occasions when a journalist has occasion to breach someone’s data privacy, the Bill requires them to show a reasonable belief that doing so was in the public interest. The Bill itself does not include a public interest test. Instead, it refers to three codes which do: the BBC Editorial Guidelines, the Ofcom Broadcasting Code and the IPSO Editors’ Code of Practice. Our amendment would add a fourth code, or rather a class of codes, to the list:

“any code which is adopted by an approved regulator as defined by … the Crime and Courts Act 2013”.

This modest amendment would bring the Bill closer to the recommendations made by Sir Brian Leveson following his inquiry into press standards and press regulation. It would also reflect the changing nature of news publication in this digital age. An approved regulator as defined in the Crime and Courts Act 2013 is a regulator that is compliant with the Leveson recommendations as distilled in the royal charter on self-regulation of the press. The royal charter requires an approved regulator to have an independent board, to have effective powers and remedies, to provide a low-cost arbitration scheme for civil disputes and to take responsibility for a standards code. According to the charter, the standards code of an approved regulator,

“must take into account the importance of freedom of speech, the interests of the public … and the rights of individuals”.

In particular, it must include appropriate “respect for privacy” where there is no sufficient public interest justification for breach.

The charter also states that a regulator can be approved only if it provides,

“non-binding guidance on the interpretation of the public interest that justifies what would otherwise constitute a breach of the standards code”.

In other words, a regulator can be approved only if its code properly balances the interests of freedom of speech with appropriate respect for privacy and if it provides guidance on what this means in practice. In order to be listed, an approved regulator must not just be likely to have the right kind of code; it must be guaranteed to do so.

At present, the only approved press regulator is Impress, the Independent Monitor for the Press, which was recognised by the Press Regulation Panel in October 2016 after a nine-month application process. The decision of the Press Recognition Panel to approve Impress has recently been upheld by the High Court, which dismissed an application for judicial review brought by the News Media Association on all six counts. In due course, other regulators may be recognised.

The system we envisage is not exclusive and more than one regulator at a time may enjoy approved status. In this way, Amendment 58 allows for changes in the regulatory landscape. So long as a regulator has successfully completed the rigorous approval process, its standards code would be included; if a regulator withdraws from the recognition system or loses its approved status, its code would no longer be included.

Impress now regulates 78 news publications across the UK that reach almost 7 million readers every month. A further 36 publishers have applied to join. Without this amendment, these publications would not enjoy the same protections as members of IPSO, which does not meet the Leveson criteria and is not externally accountable. In these circumstances, for the Bill not to contain a framework that covers Impress and other Press Recognition Panel-approved publishers beyond the three codes currently listed would be perverse.

Data Protection Bill [HL]

Lord Black of Brentwood Excerpts

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

Moved by

[Lord Black of Brentwood]

163A: Clause 143, page 79, line 16, at end insert—
“( ) Prior to giving an enforcement notice under section 142(1) against an information society service in respect of material originating from a third party controller or processor processing personal data for one of the special purposes, the Commissioner must consult and take into account any representations made by the third party, save in circumstances where consulting the third party would result in substantial damage or substantial distress to an individual, in which case the Commissioner must take into account the special importance of the public interest in the freedom of expression and information.( ) The Commissioner must publish a summary of any enforcement notice issued against an information society service in respect of material processed by a third party controller or processor for any of the special purposes.”

[Lord Black of Brentwood (Con)]

My Lords, in moving Amendment 163A I shall speak also to Amendments 164A, 170B to 170D, 172A to 172C—a number of which the noble Viscount, Lord Colville of Culross, has added his name to—and to the Question whether Clause 165 should stand part. I fear that if noble Lords are still suffering from indigestion as a result of the alphabet soup of amendments we had in Committee last week on this subject, today we have an even more indigestible alphabet banquet.

The amendments relate to media freedoms. I declare my interest as the executive director of the Telegraph Media Group and draw attention to my other media interests. As with the previous group of amendments we discussed in Committee, the implications in this area go well beyond the press and impact on online and broadcast media, along with a wide range of literary and artistic interests. They are supported by the Media Lawyers Association, the News Media Association and the Society of Editors. In the past few days, noble Lords may also have received very important representation, specifically on Clause 164, from the BBC, ITV and other broadcasters.

I highlight two points in particular to give context to this group of amendments. First, Clause 164(3)(c) gives a statutory regulator—the Information Commissioner —powers to interfere with investigations and reporting, pre-publication. Secondly, unless the defences in the Bill are augmented, Clause 161 means that a reporter vindicated as acting lawfully in the eyes of the civil courts could be convicted on the same grounds in the criminal courts. That has widespread ramifications. The exemption for special purposes covers not only the journalism of the BBC, Channel 4, ITN and all newspapers, national and local, but the deadly serious journalistic work of NGOs and campaigning organisations such as Global Witness.

The GDPR demands freedom of expression protections for academic, literary and artistic purposes as well. That means that the playwright, producer, professor, provocative cartoonist, artist, author, diarist and publisher of any book whose work at any stage uses information about living individuals, falling within the broad application of the Bill, is as vulnerable to these parts as the media. That is why the provisions deserve the most careful scrutiny and attention. Given that these powers bite pre-publication, the mere assertion of a data protection breach will be a marvellously cheap and convenient way for individuals with something to hide to stop any work that may cast them in an unwelcome light in its tracks. Indeed, there is a double jeopardy in the Bill, as under Clause 165, the Information Commissioner is empowered to provide financial support to people wanting to bring action; her written determination would also lift any stay on legal action in respect of pre-publication processing.

Let me explain, as briefly as I can, how these amendments seek to tackle that mischief. The first two of them relate to penalties. Amendment 163A to Clause 143 is intended to prevent inconvenient truths being all too conveniently covered up. Currently, the original publisher of an article de-listed from Google or other search engines, following the complainant’s appeal to the Information Commissioner to have it taken down by the content aggregator, neither knows about this virtual disappearance nor has any opportunity to put the case on the accuracy or continued relevance of the article to the ICO. This amendment introduces the option of the ICO consulting with the originating publisher prior to making a determination and then publicising the determinations made.

Amendment 164A to Clause 148 addresses the overall proportionality of penalties for infringements of the Act. As noble Lords will know, a company in breach must pay the appropriate penalty as set out under the Act. However, there is again the risk of double jeopardy as far as the media are concerned, because the standard contractual terms of content aggregators such as Google require media organisations to indemnify them in respect of journalistic material that they then disseminate to their users. Due to their huge global turnovers, such aggregators could be liable for far greater fines under the GDPR, dwarfing those that any media organisation would be liable for on its own transgression. That could result in media organisations facing financial ruin because of the indemnity they are bound to give. This amendment simply proposes that, when any fine is imposed, consideration should be given to indemnities, compensation and other penalties for which organisations are liable, if a breach arises.

--- Later in debate ---

[Lord Keen of Elie]

I am not immediately reminded of any precedents, but principle often caps precedent.

[Lord Black of Brentwood]

My Lords, I thank all those who have taken part in this thoughtful and important debate—despite the fact that it is the first time I have been likened to someone who has murdered his parents, thwarted the will of Parliament and, according to the noble Lord, Lord Puttnam, is the personification of all the sins of the media. I regret that, given the seriousness of the issues for the academic, literary and artistic worlds, we have yet again had a debate which has largely been dominated by press regulation. We have been round this course so many times that even Sir Mo Farah would have been exhausted by now.

I am inclined to agree with the noble Lord, Lord Stevenson, that this is not really the place to debate press regulation. We should wait to see what the consultation says. Like other noble Lords, I am grateful for confirmation from the noble and learned Lord that we will have a response by Christmas.

There were two very important speeches. The noble Baroness, Lady Stowell, talked about the profound change—I shall get my bit of Latin in again—from post hoc to ex ante. We cannot underestimate the scale of the impact of that across the media, and it is right that the noble and learned Lord should look at that. The noble Viscount, Lord Colville, also made some very powerful comments about the serious implications for investigative broadcast journalism. His point about how the Armstrong Sunday Times case would have been impacted by the Bill was a vivid example of the mischief that currently sits in it.

I am very grateful to the noble and learned Lord for saying that he will look at the issues raised, particularly by Amendments 163, 164A and 170B, and also at Clause 164(3)(c). It has caused concern around the Committee, and he confirmed that it is a change since the 1998 Act that will have profound implications. On that note, I beg leave to withdraw the amendment.

Amendment 163A withdrawn.

Data Protection Bill [HL]

Lord Black of Brentwood Excerpts

Committee: 3rd sitting (Hansard - continued): House of Lords
Monday 13th November 2017 Lords Chamber

Moved by

[Lord Black of Brentwood]

87ZA: Schedule 2, page 136, line 40, leave out “only”

[Lord Black of Brentwood (Con)]

My Lords, I will be as brief as I possibly can in moving this amendment and speaking to the group, which relates to paragraph 24 of Schedule 2 to the Bill, in Part 5, and the exemptions for journalistic, academic, literary and artistic purposes. I declare my interest as director of the Telegraph Media Group and draw attention to my other media interests. However, I underline that these amendments are not simply of importance to what we used to call the print media, but have the support of a range of broadcast and online media organisations as well as the Media Lawyers Association, the News Media Association and the Society of Editors, as the Bill has a very wide impact on them all.

In Committee last week, the Government reiterated their strong commitment to the,

“operation of a free press”,

as a,

“fundamental principle of any liberal democracy”,

in relation to this Bill and journalistic exemptions.

My noble friend the Minister also sought to make it clear that the Bill seeks to preserve the important “balance” between privacy and free speech found in the 1998 Act, the operation of which has been so successful, as well as ensuring that the journalists remain, in his words,

“exempt from compliance with certain data protection requirements where to do so would undermine the operation of a free press”.—[Official Report, 6/11/17; col. 1675.]

These amendments seek to build on those commitments by proposing some ways in which journalistic safeguards can be made clearer and strengthened further. Some of them seek to ensure consistency in application of the journalistic exemption between the 1998 Act and the Bill; some would extend journalistic exemption, but always subject to the Bill’s conditions, to match new requirements of the GDPR which would otherwise threaten freedom of expression and journalism; and some are intended to avert potential exploitation of the new regime, especially where legal action—often on spurious grounds—can bypass the freedom of expression protections crafted so carefully by those in this House under the Defamation Act 2013, a point I highlighted at Second Reading.

The amendments are intended to safeguard investigative journalism, publication and archives, both domestic and international, for all news media, print and online. In particular, they would prevent the Information Commissioner becoming a statutory regulator of the media, with dangerous and unprecedented prepublication powers. Where the accuracy of what has been published is challenged, they would adopt the approach of defamation law, rather than undermining it. I hope that my noble friend will give serious consideration to the issues and suggested amendments.

I turn briefly to the operation of the amendments. Amendments 87ZA, 174A and 174B would mean that the Bill no longer stipulated processing “only” for the special purposes. This is because article 5 of the GDPR, which mandates exemptions for the purposes of journalism and for academic, literary and artistic purposes, does not require that processing take place “only” for those purposes to benefit from the exemptions. If there is ancillary processing, the exemption should not be vulnerable to any claim that it might be lost.

For example, the media should not be penalised under data protection law in this way if, say, the police sought the pre-broadcast disclosure of journalistic material in relation to an undercover investigation because they wanted to see whether the alleged wrongdoing uncovered by the broadcaster’s investigation merited further police investigation. Furthermore, if broadcast media fund their activities through regulator-approved activities such as Ofcom’s product placement, this should not prevent them benefiting from the exemption.

Amendments 87AA, 87AB and 87AC would amend Schedule 2, part 5 and paragraph 24(2)(a), as the current wording of the Bill arguably represents a narrowing of the application of the exemptions from those in the Data Protection Act 1998, which apply to,

“processing … undertaken with a view to publication by any person of any journalistic, literary or artistic material”.

The amendments would ensure that both the specific personal data and the related material which forms part of the background research are protected.

Amendment 87CA, adding a new subsection to paragraph 24(2), is another aimed at consistency in the transition to the new Act, in this case relating to how to judge where the application of the GDPR principles is incompatible with the special purposes, including journalism—hence the all-important circumstances where the media can rely on the exemption. This amendment would bring the Bill in line with non-binding guidance from the Information Commissioner, which already recognises that media organisations can form the reasonable belief that compliance would be incompatible with the special purposes where it would be, “impractical or inappropriate”.

Amendments 87DA and 87DB to paragraph 24(3) are intended to ensure proper safeguards for journalism and freedom of expression. The provision currently fails to reflect that the exemption applies where the data controller reasonably believes that publication would be in the public interest. In addition, the provision refers to what the controller “must take into account”—quite properly, the special importance of freedom of expression. However, it should also be made clear that the public interest in freedom of expression and information itself, in the widest sense—from the trivial to the most serious—must be taken into account by the Information Commissioner and the courts, again to maintain consistency of approach with the 1998 Act.

Amendments 89C to 89F and 91B address the need for further exemptions, as permitted by GDPR article 85. This is because the GDPR provisions could otherwise have serious, albeit unintended, consequences for all the media. These are additions to the list under Schedule 2, part 5 and paragraph 24(8).

Amendments 89C and 91B are perhaps more procedural and technical in nature. I will come to those but, first, Amendments 89D 89E and 89F raise serious issues concerning the maintenance of integrity of investigations, publications and archives.

Amendment 89D to Schedule 2, Part 5, paragraph 24 (8)(b), would provide a vital exemption from article 36—the requirement for prior consultation set out in chapter IV of the GDPR. Without such an exemption, there would be an obligation to consult the ICO up to 14 weeks or more in advance, where a “data protection impact assessment” indicates that the proposed processing would result in high risk to data subjects in the absence of measures to mitigate that risk. Put simply, this could be a huge risk to investigative journalism, particularly by broadcasters. It could impact their public interest undercover investigations and use of covert filming techniques, such as when investigating allegations of abuse against vulnerable residents at a care home or conditions at a detention centre.

The existing regulatory codes already require them to believe use of such methods to be necessary in the public interest. It is a dangerous departure of principle from the protections in the Data Protection Act 1998 against pre-publication interference, and is at odds with the fundamental traditions of UK journalism and legal safeguards for freedom of expression. It is wholly inappropriate to require the broadcasters or other media to consult the ICO and seek approval prior to investigations requiring use of secret filming techniques and similar emerging technology, such as drone use or wearable technology. Article 36 could stifle investigative journalism and add yet another unprecedented pre-publication power to the Information Commissioner’s potential armoury of statutory pre-publication tools. That is why the amendment states that there must be an exemption from the article 36 prior consultation requirements, provided that the media can satisfy the exemption conditions set out in the relevant provisions in this part of the Bill.

Amendments 89E and 89F have been tabled to put beyond doubt the public interest protections for journalistic activity and publication across borders and media archives through the freedom of expression exemptions mandated by Article 85. Amendment 89E to paragraph 24(8)(b) in Schedule 2 would add a journalistic exemption consistent with satisfaction of the conditions in paragraph 24 of Schedule 2 from the requirements of chapter V of the GDPR concerning transfer of personal data to third countries outside the European Economic Area or international organisations. Third country transfers, of course, include online publication itself. This exemption would enable international publication by UK online publishers, be they the BBC, the Guardian or any other UK news brand sought out by international audiences. The journalistic exemption is also needed to allow collaborative investigative journalism, swiftly sharing data across borders where appropriate, such as with the Panama papers or, as we have seen just recently with the Paradise papers. The journalistic exemption is also required for communications between the media and their foreign correspondents wherever they might be situated outside the EEA.

Amendment 89F would provide the explicit safeguard for news media archives which is currently lacking from the Bill. This would ensure that media archives, whose role and importance the noble Viscount, Lord Colville, described so well at Second Reading, constitute archiving in the public interest and receive the protection of the exemptions. This would be in line with recital 153 of the GDPR, which provides that the protection to be afforded to freedom of expression and information should apply,

“in particular to the processing of personal data in the audio visual field and in news archives and press libraries”.

There are two procedural but none the less important amendments completing this group. Amendment 89C to paragraph 24(8)(b) would add an exemption to article 19 of the GDPR, which requires data controllers to inform the data subject about the recipients of personal data subject to rectification or erasure, if requested by the data subject. While exemptions might apply, the media do broadcast and publish corrections and take other measures. It would be entirely inappropriate to say that article 19 might require the provision of information about individual “publishees” and could be in breach of such individuals’ freedom of expression and data protection rights, as well as in breach of privacy notices.

Finally, Amendment 91B is a measure to mirror the improvements made to defamation law and to protect against the undermining of their freedom of expression safeguards, by attempted exploitation of the data protection laws instead. This, as legal expects among you—I am not one—will instantly recognise is akin to the introduction of a rebuttable single publication rule and a limitation period of one year subject to further amendment to the Limitation Act 1980. Any complaint concerning accuracy of material processed for journalistic, academic, literary and artistic purposes can and should be brought promptly. Some complainants already attempt to abuse data protection law by bringing complaints many years after material is first published, when it will be more difficult for the media, as data controller or processor, to substantiate the accuracy of the publication and the veracity of the complaint. To maintain consistency with the defences under the Defamation Act 2013, this amendment proposes that a limitation period be introduced to prevent complaints about accuracy being brought outside a period of one year after the date of first publication. If adopted, the Limitation Act 1980 should be accordingly amended. This time limit would then apply to both ICO enforcement action and legal claims. Such measures are needed to protect against libel claims being dressed up as data protection actions, to the detriment of freedom of expression and information.

--- Later in debate ---

[Baroness Chisholm of Owlpen (Con)]

As my noble friend Lord Black and the noble Lord, Lord Stevenson, said, the Government are firmly committed to preserving the freedom of the press, maintaining the balance between privacy and the freedom of expression in our existing law that has served us well.

I shall try to reply to my noble friend as I go through the many amendments—a soup of amendments, as the noble Lord, Lord McNally, said. As we heard, Amendments 87ZA, 87AA, 87AB and 87AC would enable the special purposes exemptions to be used when processing for other purposes in addition to a special purpose. The use of the word “only” in the Bill is consistent with the existing law. Examples have been given of where further processing beyond the special purposes might be justified without prejudicing the overall journalistic intent in the public interest. None the less, the media industry has been able to operate effectively under the existing law, and while we are all in favour of further clarity, we must be careful not to create any unintended consequences.

Paragraph 24(3) of Schedule 2 concerns the test to determine whether something is in the public interest. Amendment 87CA seeks to define the compatibility requirement, and Amendments 87DA and 87DB seek to clarify the reasonable belief test. The Bill is clear that the exemption will apply where the journalist reasonably believes that publication would be in the public interest, taking account of the special importance of the public interest in the freedom of expression and information. To determine whether publication is in the public interest is a decision for the journalist. They must decide one way or another. It is not necessary to change the existing position.

Amendments 89C to 89F seek to widen the available exemptions by adding in additional data rights that can be disapplied. Amendment 89C seeks to add an exemption for article 19 concerning the obligation to give the data subjects notice regarding the processing carried out under articles 16, 17 and 18 of the GDPR. The Bill already provides exemptions for the special purposes for these articles, rendering article 19 irrelevant in this context.

Amendment 89D seeks to add an exemption for article 36. This requires the controller to give notice to the Information Commissioner before engaging in high-risk processing. My noble friend Lord Black and the noble Lord, Lord McNally, both argued that this might require the commissioner to be given notice of investigative journalistic activity. This is not the case. We do not believe that investigative journalism needs to put people’s rights at high risk. Investigative journalism, like other data-processing activities, should be able to manage risks to an acceptable level.

Amendment 89E concerns the need for journalists to transfer data to third countries. We are carefully considering whether the GDPR creates any obstacles of the type described. We certainly do not intend to prevent the transfers the noble Lord describes.

Amendment 89F seeks to add an exemption from the safeguards in article 89 that relate to research and archiving. Following the interventions of the noble Lord, Lord Patel, the Government have agreed to look again at these safeguards. Once we have completed that, we will assess whether any related derogations also need reconsidering.

Amendment 91B seeks to introduce a time limit by which complaints can be brought. The Government agree that complaints should be brought in a timely manner and are concerned to hear of any perceived abuses. We will consider this further and assess the evidence base.

The Government are firmly committed to preserving the freedom of the press and preventing restrictions to journalists’ ability to investigate issues in the public interest. We will continue to consider the technical points raised by my noble friend, and I hope—at this late hour, and with the view that we will further consider points that have been raised—that he feels able to withdraw his amendment.

[Lord Black of Brentwood]

I am grateful to my noble friend for those words and to all noble Lords who have taken part in this short debate at this late hour. Apart from anything else, it has given me an opportunity to say words which I never thought I would hear myself say: I agree with virtually everything that the noble Lord, Lord McNally, said this evening.

[Lord McNally]

Then I certainly must read Hansard carefully in the morning.

[Lord Black of Brentwood]

I am particularly pleased that the noble Lord mentioned Prince Metternich, who of course was no great fan of liberal democracy. I understand that he once said that the best way to protect the freedom of the press was for nothing whatever to be published over the course of the next five years. That may indeed be the case.

I say to the noble Lord, Lord Stevenson, that in Committee last week we talked about a very different set of amendments from the one that I am proposing this evening. Those amendments were about press regulation. I argued then, and I argue now, that that should not have anything to do with this Bill. My amendments this evening do not undermine what I believe to be a very good balance, and I absolutely stick by my words; they merely provide clarification in some important areas.

I think I sense from the Committee that it would be useful to look in more detail at what I have proposed. I would be happy to talk about it further with noble Lords and to take up my noble friend’s offer to continue constructive dialogue. With that, I beg leave to withdraw the amendment.

Amendment 87ZA withdrawn.

Battle of Passchendaele

Lord Black of Brentwood Excerpts

Thursday 19th October 2017 Lords Chamber

Moved by

[Lord Black of Brentwood]

That this House takes note of the centenary of the Battle of Passchendaele and of Her Majesty’s Government’s plans to commemorate it.

[Lord Black of Brentwood (Con)]

My Lords, to lead a debate commemorating the horror and savagery of the third battle of Ypres, black-edged in the annals of British and European history, in which half a million men lost their lives, were wounded or went missing in the most appalling conditions imaginable, is both a privilege and deeply humbling. A century on, it is still a struggle to find the right words to describe what became known as the Battle of Passchendaele and to do justice to the tale of sacrifice, killing and loss that characterised the three-and-a-half months of the late summer and early autumn of 1917, which the historian AJP Taylor has perhaps most succinctly summed up as,

“the blindest slaughter of a blind war”.

I am exceptionally grateful to all noble Lords who are joining me today in commemorating those who suffered and died at Ypres and trying to find those right words.

I have wanted this House to take time to remember since I toured the First World War battlefields last autumn. With friends, I visited first the Menin Gate, one of the world’s most iconic memorials. It bears the names of more than 54,000 men who died serving the forces of Britain and many other countries from what is now the Commonwealth who have no known grave, their bodies sucked into the thick, glutinous mud of Flanders, and where to this day “The Last Post” is still sounded at 8pm every evening. From there, we went to the haunting cemetery at Tyne Cot, the final resting place of almost 12,000 Commonwealth servicemen, of whom more than 8,000 are unidentified, their graves bearing the inscription only that they are: “Known unto God”. I spent more than an hour there, looking not just at the graves but watching the faces of young people who arrived on coaches. They entered the cemetery often in boisterous form. Within moments they fell silent and their faces became ashen not just as they realised the scale of the loss—something unintelligible to a generation which has known Europe at peace—but as they realised, looking at the ages of those whose names were etched on to the gravestones, that these were people of their own age who had made the ultimate sacrifice.

For that reason alone, the powerful message that these memorials send anew to each generation—a terrible warning from history—they deserve to stand cared for and tended for all time, and we as a nation are immensely lucky that we have the Commonwealth War Graves Commission to do just that. I am sure the Minister will join me in paying tribute to its outstanding work.

A debate still rages today about the rights and wrongs of Passchendaele and whether things could have been done differently. There will never be a resolution to this debate—it will probably be raging a century from now—and, for me, today is not the place to rehearse those arguments but simply to remember. The battle was conceived by Field Marshal Haig to break out of the Ypres Salient where the British had been stuck for several years. The aim was to punch through the German lines and get to the coast in order to stop the devastating loss of vessels crossing the Atlantic being destroyed by U-boats that was threatening our survival as a nation.

As noble Lords know, it began on 31 July 1917. A century ago this month, it was grinding its bloody, grimy path to a conclusion on 10 November and, in doing so, in Churchill’s words,

“disgorged its streams of manhood”.

By this time in October, the village of Passchendaele had been all but wiped from the map. A soldier with the 13th Reserve Infantry Regiment wrote almost 100 years ago to this day:

“In all directions there was yawning emptiness, ruins, ruin and destruction.”


By the time the battle had finished, a quarter of a million men on both sides were dead or wounded in exchange for an advance of just five miles by British troops. The small strip of land over which they fought had been turned to desolation. A few years later, the brave war reporter, Philip Gibbs, who saw the battle at first hand, said that,

“nothing that has been written is more than the pale image of the abomination of those battlefields, and ... no pen or brush has yet achieved the picture of that Armageddon in which so many perished”.

Apart from the extraordinary tale of sacrifice, this “Armageddon” was a battle marked by two things in particular. It was marked first and foremost by the bravery of the men. More Victoria Crosses were won on the first day of Passchendaele than on any other single day in the First World War. It would be useful to hear from my noble friend what is being done to commemorate their particular sacrifice.

It was marked above all by the most dreadful physical conditions imaginable because of the heavy rainfall which accompanied the start of the battle and turned the area into a quagmire which trapped soldiers and immobilised their weaponry. Indeed, the battle has become defined by what Lloyd George called,

“the campaign of the mud”.

In his extraordinary poem about Third Ypres, Siegfried Sassoon describes the horror of death in the Salient:

“I died in hell -

(They called it Passchendaele). My wound was slight,

And I was hobbling back; and then a shell

Burst slick upon the duck-boards: so I fell

Into the bottomless mud, and lost the light”.

Many of your Lordships will know that I have spoken a number of times in this House about the welfare of animals. In describing the horror of the conditions in the battle, I want briefly to mention the plight of the animals that served and died in the war and whose suffering is so powerfully commemorated on the Animals in War memorial in Park Lane. Dogs and, above all, horses were particularly vulnerable in the swamp of land. In his superb book on the battle, Nick Lloyd describes the conditions as fighting raged in the lines around Becelaere 100 years ago to this day. One soldier wrote afterwards how horses just disappeared into the muddy quicksand. He wrote:

“Officers and men attempted, in some cases up to their necks in icy water, to free the horses ... this proved to be impossible … There was nothing else … but to put them out of their … misery with a revolver shot … further on, another team fell into a crater where, before it could be rescued, all the horses drowned”.


It is right that we remember them.

The battle was marked by the great bravery of troops from today’s Commonwealth, particularly from Canada, Australia, South Africa, New Zealand, a country whose worst casualty figures of the Great War came from Passchendaele, and from Hindus and Muslims alike. Indeed, it was the Canadian 27th Battalion from Winnipeg which with British assistance finally took the village of Passchendaele on 6 November in an assault that took place, according to one Canadian soldier, in absolutely nothing but mud and water. Men came from every race, every faith, every culture, across the seas—as in the saying,

“from the uttermost ends of the earth”—

to fight and die for their king. And many did so on the Ypres Salient. It is essential that we pay tribute, as we have throughout the commemorations of the Great War, to the indispensable role that Commonwealth troops played in Passchendaele and in securing our ultimate victory.

We should also remember how important women were to the fighting at the front and the waging of war. Some of course served as nurses, 260 of whom died in the line of duty throughout the war. One was Nellie Spindler, from Wakefield, who was killed by the blast from a shell at a hospital just three miles from the front line at Passchendaele and who is the only woman buried at Tyne Cot, alongside 12,000 men. Her headstone bears the inscription “Staff Nurse” and in its simplicity sums up the heroism of all the women who endured the rain, the mud and the horrendous conditions to tend the sick and dying. Well away from the front, tens of thousands of women of course played a vital role in the war effort, producing munitions for the artillery which was so critical to the fighting at Passchendaele. Many suffered the most dreadful conditions and illnesses—we think of the canary girls whose repeated exposure to toxic TNT used in munitions production turned their skin yellow. I hope that at some point before the four years of commemorations of the Great War come to an end, this House will have an opportunity to mark their role. I would be grateful if my noble friend could tell us what is being done to pay the most profound tribute to women and their role in the war.

One enduring characteristic of all the battles of the Great War is the loss of youth and of so much potential, particularly in the worlds of music, art and poetry. Passchendaele is no exception. On the opening day of the battle of Pilckem Ridge, the talented Welsh poet Ellis Evans—better known as Hedd Wyn—a pacifist conscripted into the army, was killed. A similar fate that very day befell the gifted Irish poet Francis Ledwidge, known as the “poet of the blackbirds”. From the world of music, the brilliant young composer Ivor Gurney fought valiantly in the battle. Gurney was a student at the Royal College of Music where he was taught by Charles Villiers Stanford, who described him as potentially,

“the biggest of them all”.

Gurney survived 15 months at the front and, having been shot and gassed, returned home with five of his most enduring songs. One mud-spattered manuscript, “By a Bierside”, was written by the light of a stump of candle in a trench. But war had destroyed Gurney in other ways: as a result of shell shock, mental illness overwhelmed him and he spent the rest of his life in a mental hospital, writing little more. The loss of these artists as a result of Passchendaele underlines the pity of war and the waste of potential, for who knows what they and countless others who died in those four bloody years might have achieved had they lived.

There are a number of reasons why I believe it is important for us to commemorate the battle. One is that it was in many ways a turning point in the war. It may have failed in its objectives, but as Nick Lloyd puts it in his book,

“it marked the moment when German morale on the Western Front began to collapse”.

Equally important was that it contributed to development in British tactical skill and weaponry which gave us a decisive edge over the German armies in the summer of 1918. Passchendaele was a milestone on the road to victory.

Secondly, it was a battle in which the whole nation—and, as I mentioned, much of what is now the Commonwealth—was involved. I doubt that there are many communities in the land that do not have a war memorial bearing the names of their many sons and fathers who did not return from the hell-hole of Ypres. It is important to remember in particular the contribution of troops from Scotland. Three divisions fought at Passchendaele and made what was probably a disproportionate sacrifice in the battle.

Thirdly, and perhaps most importantly, the battle in so many ways epitomises the absolute essence of the Great War. On the one hand, it symbolises the nobility of war: the sheer scale of supreme sacrifice, the extraordinary acts of valour that were underscored by the number of VCs awarded, and the comradeship linking people of all backgrounds, faiths and cultures in a common aim. Yet on the other hand, it represents the futility of war: the immense loss of life and the squandering of so much potential—all for five miles of land which was then surrendered back in the blink of an eye to the Germans in the spring of 1918. A ridge that had cost so much blood was abandoned without a shot being fired.

Many organisations are involved in the commemoration of this great battle. I mentioned earlier the exceptional work of the Commonwealth War Graves Commission, to which should be added the War Memorials Trust which works so hard to maintain the war memorials across the United Kingdom that house forever the names of the fallen. The BBC and the Royal British Legion have played significant roles as well. The Imperial War Museum—I declare my interest as a trustee of the IWM Foundation—has this year put in place a comprehensive programme of commemoration and education. It has supported organisations across the world through the First World War Centenary Partnership, not least to bring alive for today’s young people the horror of this campaign through film, images and social media. Its Lives of the First World War project contains a permanent digital memorial to all those who sacrificed so much on the Ypres Salient in those deadly days of 1917. Their story lives on, too, in the museum’s remarkable First World War galleries.

I commend the work of my noble friend the Minister and the Department for Digital, Culture, Media and Sport. Together with the indefatigable work of Dr Andrew Murrison MP, they have done so much to make the commemoration of Passchendaele and all the significant milestones of the Great War, of which we have more to come next year, utterly memorable. I look forward to hearing from my noble friend more of what the Government have done and what impact they judge it to have had, particularly in terms of the education of young people. The department and the other organisations have between them generated a huge and almost insatiable public interest in the record of the sacrifice and heroism of those who died a century ago. I hope that today’s debate will contribute to the powerful record of commemoration of that fateful year, one which all those who are privileged to sit in this House, in this seat of freedom and democracy, should revere for all time.

Let me finish where I started, back at the Memorial to the Missing at the Menin Gate. It was opened in July 1927 with words of comfort for those who were never recovered from the battlefield: “He is not missing; he is here”. I like to think that all those who fell are here with us today.

--- Later in debate ---

[Lord Black of Brentwood]

My Lords, I thank the Minister for that comprehensive response. Even by the high standards of this House, as the noble Lord, Lord Stevenson, said, this has been an exceptional debate which has probed so many aspects of the dreadful Battle of Passchendaele in a series of incredibly thoughtful, poignant and moving contributions. I am most grateful to all noble Lords who took part.

One of the most striking features of the debate was what the noble Baroness, Lady Andrews, described as the hidden stories of the war, which she deployed to such effect. From the right reverend Prelate, we heard one of those hidden stories, of the chaplaincy, which I found fascinating. By the noble Lord, Lord Hutton, we were allowed the opportunity to hear the voices of the past in their own moving words. For me, the most telling moment was when the noble Baroness, Lady Brinton, talked about the ordinary combatants in the battle, but then added, quite rightly, that none of them was ordinary. How right she was. They were all extraordinary, as they faced up to what eye witnesses at the time said was like descending into Dante’s Inferno. My noble friend Lord Lexden said that it was as if providence had given Passchendaele its name, because it has become synonymous with so many different things: with suffering and courage. It lays bare our own humility and it lets us have lessons for the future, but, most of all, as the right reverend Prelate said, from the death of so many young men springs a message of hope.

Motion agreed.

Digital Understanding

Lord Black of Brentwood Excerpts

Thursday 7th September 2017 Lords Chamber

[Lord Black of Brentwood (Con)]

My Lords, I join the deserved chorus of congratulation for the noble Baroness, Lady Lane-Fox, on securing this debate. I want briefly to address two issues: first the impact on young people, who in many ways personify the dilemma of digital understanding. On the one hand, digital opens up for them a world of opportunity. On the other hand, the fast-moving world of social media presents great danger in terms of isolation, bullying—particularly homophobic bullying—and depression. Schools have a very fine balancing act. I am a governor of Brentwood School in Essex—I declare an interest accordingly—which is one of those showing the way in this area. It harnesses the power of digital to enhance and enrich learning by ensuring that every child in the school has their own iPad. At the same time it strives to keep children safe by keeping control of the technology by banning mobile phone use during the school day, encouraging pupils to use technology in a family space and advocating social time without the distraction of any devices. I am sure that that will be music to the ears of the noble Lord, Lord Sugar. That seems to me to be a good way of squaring the circle of empowerment and safety. It is a challenge all schools must face up to.

In my own world of the media—I declare an interest as executive director of the Telegraph Media Group—the digital revolution has allowed us to reach out to huge new audiences. Today 39 million people in the UK digitally access news on the industry’s websites, and many hundreds of millions worldwide. Last year, content on those websites drove 1 billion social media interactions. That is a phenomenal success story, but it has come at a price. As all noble Lords know, the digital revolution has destroyed the business model which sustains the news publishing industry as advertising revenue has shifted online. For many in the business it is a race against time to adapt and to find new revenues. I am confident it is a challenge that can be met, provided the industry is free to adapt unburdened by excessive and punitive legislation including, of course, the odious Section 40.

One area of great concern is fake news, which is central to this area. Fake news has been with us ever since the printing press was invented, and always will be. What has changed, as the noble Baroness, Lady Worthington, said, is the impact of social media, where algorithms connect users to news by second guessing what the user might like rather than assessing its quality. As it thrives, it attracts advertising from reputable brands and Government. Fake news causes real social harm by reinforcing so-called “filter bubbles” that warp people’s understanding of the world and insulating them from opposing views.

There is no easy answer to that, but one thing we need to do is ensure the sustainability of the real, verified, regulated news which appears in UK news brands. Like many others, I warmly welcome the Government’s commitment to establishing a digital charter which will go a long way towards dealing with some of these issues. I also believe that while fake news is an important issue in its own right, it is actually part of a much wider problem of the sustainability of the news industry, and the structural changes in the advertising market from the establishment of a duopoly of news aggregators. That is an issue to which we shall have to return.