Digital Economy Bill

Debate between Lord Black of Brentwood and Viscount Colville of Culross

Committee: 2nd sitting (Hansard - continued): House of Lords
Thursday 2nd February 2017 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a director and producer of television programmes for public service broadcasters. I have put my name to Amendments 73 and 235 because I want the public service broadcasters in this country to benefit as soon as possible from the repeal of Section 73. I also support Amendment 73A, which seems a very sensible use of any money the PSBs might garner. The question of whether there should be a transitional period after the repeal of Section 73 seems to revolve around the issues of whether underlying rights need to be worked out as part of the retransmission negotiations and whether it will take time to introduce a new structure for negotiating licensing arrangements between PSBs and cable providers.

At the moment, all channels, including the PSB channels, routinely buy the rights for “traditional” cable retransmission if they anticipate content being carried on cable, so rights should not be a problem. Therefore, any negotiations will focus on the licensing arrangements between the PSBs and the cable providers. As there is already a structure in place for the licensing arrangements of the PSBs’ non-core digital channels, this surely cannot be an excuse to put off the introduction of a similar framework for the core channels the moment Section 73 is repealed. I, too, am saddened by the extraordinary amounts of money that seem to be made by the streaming catch-up websites, such as TVCatchup and FilmOn. The litigation appears to suggest that millions of pounds has been made by these websites and therefore lost by the PSBs. The sooner we can stop that loophole, the better.

There is a genuine need to give extra financial support to the PSBs in this country. As the noble Lord, Lord Clement-Jones, said, they are the major customers for original UK content in all genres. They are threatened by the success of BSkyB and, in the BBC’s case, threatened with a 20% cut in funding as it takes on the burden of the concessionary TV licence fees. The noble Lord, Lord Clement-Jones, said that huge amounts of money would not be made by the repeal. However, the 2013 NERA report in the US noted that the free-to-air American broadcasters received $3.3 billion in retransmission payments, while the fees accounted for less than 3% of the cable operators’ cost. Therefore it seems that while UK PSBs will be able to raise extra money from new retransmission fees to invest in new content, the repeal will not have much impact on the price charged to the viewer. The removal of Clause 29(3) and the rapid introduction of the repeal of Section 73 will benefit both the PSB content providers and the creative industries across this country.

[Lord Black of Brentwood (Con)]

My Lords, I should like to say a few words in support of Amendments 73 and 235, to which I have added my name, and in doing so draw attention to my media interests as listed in the register. Like the noble Lord, Lord Clement-Jones, whose summary of the issues was excellent and which I wholeheartedly endorse, I warmly welcome Clause 29 and the Government’s decision to scrap Section 73, but I urge them to get on with it straightaway rather than having any form of transitional period, as time really is of the essence.

There is a good reason for that. No one can be in any doubt about the speed of change right across the media. A technological tsunami is overwhelming all those involved in content production, while the pace of development in the sector is relentless and punishing. It is the clear responsibility of any Government who believe in the creative economy—and this Government certainly do—to do all they can to support them through it, in this case by allowing the commercial television sector to invest more in world-class content. The question of retransmission fees is one where the Government can be a real help or, indeed, a real hindrance.

The legislation that is being repealed is nearly 30 years old. When it was put on the statute book, the fax machine was a technological novelty and there is simply no rationale for it continuing a day longer than it has to. Like the noble Lord, Lord Clement-Jones, I cannot see any reason for there to be a transitional regime, especially as all those involved have had fair warning of something which, as he said, we have been discussing since 2008. A further delay of up to two years is a lifetime in the creative industries and Section 73 is doing real harm now. If we are committed to a successful commercial public sector broadcasting industry and want to see investment in brilliant content, we should make sure that Section 73 goes as soon as the ink is dry on this legislation. Any law that is out of date and doing positive harm should go straightaway and not linger. It would be a real boost right across the whole of the UK’s creative economy and ensure that it gets an immediate benefit from this very important Bill.

Investigatory Powers Bill

Debate between Lord Black of Brentwood and Viscount Colville of Culross

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I thank the Minister for bringing forward this group of amendments, which will go a very long way to protecting the important relationship between the best journalists and their sources. As a journalist, I know how increasingly difficult it is to nurture a relationship with a whistleblower or an anonymous source who is prepared to reveal confidential information in the public interest. The Bill had been in danger of damaging that bond of trust, as I said in my speech at Second Reading. However, Amendment 30 will now place this relationship at the forefront of the judicial commissioners’ minds. During the passage of the Bill there have been questions about the definition of journalism, but these new amendments will give commissioners the powers to decide whether it is in the public interest to protect a particular source of journalism information.

I have also been concerned that targeted interception clauses would have made journalists covering demonstrations greater targets for those wanting to cause harm. The Bill would have opened the journalists to the threat of being seen as agents of the forces of law and order. This would have compromised their independence and ability to report the incident, not to mention putting them in harm’s way. However, Amendment 75 assuages my fear. The noble Earl and the Bill team have gone far to strengthen these safeguards for journalistic material in the various powers considered, but the new codes of practice will strengthen them even further. My only reservation is that the Bill does nothing to allow notifying the lawyers of reputable news organisations to alert them that a warrant to carry out surveillance on their journalists has been issued. This would have given them a chance to explain the importance of maintaining the confidentiality of a source when a warrant was asked for. However, I trust that the changes brought forward in this group of amendments will allow the commissioner to protect those sources of journalism. I know that the noble Earl and the Bill team have worked long and hard to come up with these amendments and I thank them.

[Lord Black of Brentwood (Con)]

My Lords, I declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register. Like the noble Viscount, Lord Colville, I am most grateful to the Government, and in particular to my noble friend the Minister—who has, as always, been the soul of patience and emollience—for listening so sympathetically to the arguments put forward in Committee and for engaging in what seemed like countless constructive discussions with media interests on issues which are of acute importance to a free press.

I welcome the amendments that the noble Earl has brought forward today. They mesh together with Amendments 10 and 11, which form the umbrella for the safeguards being introduced. They go a considerable way to meeting the concerns raised by the media. They do not, of course, go as far as some in the media would have liked in an ideal world. In Committee we looked at prior notification, which the noble Viscount, Lord Colville, has just mentioned. However, we do not live in an ideal world, and it is very welcome that these amendments recognise in the Bill the significance and special importance of journalistic material. Given the particular difficulties of prior notification, which I fully understand, and the fact that we are at a late stage in the legislative process, this package is a practical way forward to keep the structure of the Bill intact, while providing important safeguards, although perhaps limited in some respects for confidential sources.

Investigatory Powers Bill

Debate between Lord Black of Brentwood and Viscount Colville of Culross

Monday 11th July 2016 Lords Chamber

[Viscount Colville of Culross (CB)]

My Lords, I declare an interest as a producer and director at the BBC.

The protection of sources of journalistic material has been talked about in the other place and in your Lordships’ House. Maintaining the trust of these sources is crucial to enabling the important role that is played by the free press in exposing wrongdoing in private and public institutions. That must be in the public interest. There is a difference between the public interest and what the public is interested in.

This Bill curbs the collection of journalistic material in violent and difficult situations, such as riots or demonstrations that turn violent. I very much welcome Clause 2, which covers privacy. That concerns all citizens. This amendment asks for an extra protection for sources of journalistic material and information across the powers of the Bill. It responds to noble Lords’ concerns about the difficulty of defining a journalist. In Clause 73, the words “journalistic material” are used. The amendment uses the same concept and refers to:

“Protection for journalistic sources, materials and activities”,

using the definition of journalistic material set out in PACE. This definition can be used as a basis for decision-making by the carefully trained and very experienced judicial commissioner who is charge of this process. The commissioner will decide what is journalistic material and what is not. I am sure that the public interest—again, rather than what the public are interested in—will be the most important criterion. This would mean that PR communications, which are for commercial benefit rather than public interest, will be excluded. Likewise, it would exclude fundamentalist bloggers who are clearly sending out propaganda whose material could never pass the test of public interest.

I know the Minister is concerned that free speech should flourish and that sources who provide this journalistic material do not feel that they are unnecessarily being surveilled by the authorities using the extraordinary powers available in our digital age. I am grateful to the Government for listening to these concerns, and I welcome the safeguards provided in Clause 73 for the protection of sources of journalistic information in the power of communications data.

Amendment 25, however, aims to extend those protections for sources to the other powers set out in the Bill. I am particularly keen for the power for targeted equipment interference to be covered by a safeguard for sources. This could be material owned by the journalist or the source who is giving the information. Targeted equipment interference includes the ability to use a mobile phone’s microphone as a bug. It could also include looking at a journalist’s electronic notebook and at footage shot in the course of a story, which, as a broadcast journalist, worries me a lot.

I note that there are thresholds in the Bill for issuing this kind of warrant, which include national security and serious crime. The definition of serious crime is explained in Clause 235. Paragraph (a) states that it has to be an offence for which someone,

“could reasonably be expected to be sentenced to imprisonment for a term of 3 years or more”,

but paragraph (b) states that it is where,

“the conduct involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose”,

I am worried that the definition in paragraph (b) is very wide and represents too low a threshold. It includes any conduct that,

“involves the use of violence”,

and,

“conduct by a large number of persons”,

and therefore includes the classic case in which the police try to get hold of footage filmed at public demonstrations. Violence is a very wide concept. If serious crime was limited to paragraph (a) or to indictable offences only, there might be a point, but allowing the definition of serious crime to cover any violence by a large number of persons is too low a threshold and would get round the tried and tested means of accessing information through PACE.

I know from experience that journalists are often seen by demonstrators and rioters as extensions of the authorities. This process started abroad, but it is now often seen in this country. As a result, we are seeing journalists targeted for taking footage of riots or violent behaviour. This is a dangerous trend, which we should all try to prevent. In the Dale Farm case, when the police wanted to see footage from Sky News, the judge ruled that the request posed a danger to broadcast journalists. He said:

“If the perception takes hold that such people are working on behalf of the police, or are likely to co-operate with them by supplying such material routinely, life could become very difficult. They might find it more difficult to obtain access to areas where demonstrations are taking place or to work in the vicinity of those who are prone to violence. Moreover, at its most acute, the perception could increase the risk of violence towards cameramen or their equipment”.

I ask the Minister to look again at the Bill and to extend the protection for journalistic material across the powers. This provision would ensure that the judicial commissioner would be asked to look at warrants and would have to bear in mind the safeguards needed to protect journalistic sources.

Proposed new subsection (4) asks for notice of a warrant request to be given to the media organisation, unless there are exceptional circumstances, such as a great emergency or when immediate action has to be taken. This is important so that it can explain the dangers involved in exposing the source. I understand that, as the Bill stands, the judicial commissioner, if concerned about the dangers of a warrant being granted to the journalist and the dangers this might pose to the journalistic source, will have the right to ask for more information. My fear is that they might not have been given all the facts by the people requesting information. It might just be that the person making the request is not even aware of the danger to the journalistic source from exposure to surveillance.

I quite understand the fears of the Government that notification to a media organisation might defeat the whole purpose of the exercise, but PACE covers the physical property of journalistic information and gives a right of notification so that the application can be challenged. PACE, however, dates back to 1984, when the internet was still a glimmer in the eyes of Sir Tim Berners-Lee. We never imagined the presence of digital information in worldwide communications at the press of a button. Mobile phones, computers and the internet are the notepads of the 21st century. The Bill is a wonderful recognition of the changing way in which we communicate, and it covers this. Surely this amendment is an opportunity to update the notification section of PACE to cover the equipment of our age that is used to gather journalistic information.

The amendment suggests that notification should be given through the media organisation. In the vast majority of cases, the application will relate to a newspaper or broadcaster, and a lawyer will be available for the news outlet in either broadcast or print. In-house lawyers regularly receive sensitive information, such as orders from family courts, privacy injunctions and super-injunctions, and are well able to handle sensitive information such as police requests for footage under PACE or the Terrorism Act, or indeed any police request. So I do not think handling such a request will be an issue. If there is a concern about the media organisation or the journalist involved, we should talk about the judicial commissioner being involved and helping make that decision.

I understand that noble Lords are concerned that there could be false claims of journalistic sources, which could be used to prevent a warrant. I suggest that the journalist would have to sign a witness statement that the claim is true; if found not to be, they would have perjured themselves and be subject to the might of the law. Once again, in this issue the judicial commissioner would have an important role to play. They would use their experience and training to decide whether the recipient is noteworthy or not.

The amendment represents very important safeguards for free speech in our country. I know that the Government greatly support this principle. I urge the Minister to consider carefully the changes to the Bill set out in the amendment and I beg to move.

[Lord Black of Brentwood (Con)]

My Lords, I support Amendment 25, moved by the noble Viscount, Lord Colville. I declare my interest as executive director of the Telegraph Media Group and draw attention to my other media interests in the register.

As the noble Viscount has said, the issue of the confidentiality of journalists’ sources has been a leitmotiv during the obsequies of the unloved Regulation of Investigatory Powers Act and throughout the passage of this Bill, during extensive pre-legislative scrutiny, in all its stages in the other place and now here in Committee in your Lordships’ House. But we are now nearing the end of it all and so this is probably our last opportunity to get it right. It therefore deserves the closest and most thorough attention.

I doubt that there are many here who need persuading about the importance, in a free society, of the protection of sources. The arguments were most formidably summed up in the case of Goodwin v United Kingdom in a famous ruling in the European Court of Human Rights some 20 years ago, which stated:

“Without … protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected”.

The protection of sources is crucial for investigative reporting, whistleblowing and indeed free and unfettered political debate. Without adequate protection, investigative journalism becomes almost impossible, whistleblowers do not come forward to the press and wider media to alert them to issues of public interest, and political debate becomes sterile and bland.

Your Lordships should not underestimate the difficulty already faced by journalists in getting confidential sources to speak on matters of often profound public interest. There has been so much attention given in recent years to the way in which sources have been exposed through surveillance and the misuse of anti-terrorist legislation that it is becoming harder and harder to get sources to come forward. Some even fear for their lives because they could easily become targets themselves if it became known that they had co-operated with a reporter. It is not an overstatement to say that, on occasion, the protection of sources can be a matter of life and death. That is why we must take with the utmost seriousness the passage of any legislation in this House which damages free expression and undermines the protection afforded to confidential sources by opening up the possibility of the state being able to shadow the work of journalists, track what they are up to, identify their sources and see what information they have made available.

I know that the Government are acutely aware of the importance of this issue and have listened with great diligence to the concerns of the media and others. I am very grateful to them for the action that they have already taken to strengthen the Bill in this regard, and the amendments in the other place are a very welcome step in the right direction. Unfortunately, I do not believe that they have yet gone far enough. Yes, there are safeguards, and they are very welcome. But they are not strong enough, and above all they will not work properly, and that is what this amendment is all about.

As I have said, this is a matter of real and urgent concern to the whole of the media—publishers, editors, trade unions, the national and regional press, magazines, broadcast and digital—and there has been unprecedented co-operation among interests which are often competing. The reason for this level of unity is, I am afraid, a profound sense of déjà vu. During the passage of RIPA back in 2000, a similar coalition of interests, led by the Newspaper Society, warned that its wide terms and lack of adequate safeguards would inevitably lead to the undermining of confidentiality of sources. The industry warned that the number of organisations which could use RIPA powers should be limited and that the grounds for the use of those powers should be more strictly limited. The industry was repeatedly told that it was crying wolf and that there was no way the Bill could be so abused. On 6 March 2000, Jack Straw, then Home Secretary in the other place, gave a specific guarantee on that subject.

But, of course, we know exactly what happened. We have heard of, and seen, numerous examples where local authorities and the police then subsequently used RIPA powers of surveillance to access phone records to crack down on whistleblowers talking confidentially to the press; and it has often been the local press, who are the guardians of local democracy and accountability, who have been in the firing line. In one case, involving the Derby Telegraph, a local authority used RIPA powers to spy on a reporter who had been talking to council employees. In another, deeply disturbing incident, Thames Valley Police used RIPA powers to place a probe inside the car of a source who had been talking to a reporter from the Milton Keynes Citizen, Sally Murrer, and, on the back of recordings obtained, arrested the journalist and strip-searched her. In 2012, Cleveland police used RIPA powers to access the phone records of three Northern Echo journalists to try to find out the source of its coverage of a Cleveland Police internal report that revealed elements of institutional racism within the police force.

All this—and much more that we may never know about—happened despite protestations from the then Government that this could not possibly happen. The reason for that, as we have seen in countless other cases of legislation involving press freedom and confidentiality of sources, is that the legislation has not been watertight, proper and comprehensive safeguards were not written into the Bill, and it has been too easy for those wanting to access sources to find loopholes through which to crawl. This mistake cannot be allowed to happen again.

It is easy to see where the problem with this Bill arises. As the noble Viscount said, yes, there are safeguards in Clause 73 relating to prior judicial authorisation, and that is welcome, but it is inadequate in a number of respects. For one thing, it governs acquisition of communications data only for the purpose of identifying or confirming the identity of a journalistic source. Crucially, it does not apply to acquisition of data for other purposes. But most importantly, it does not allow for prior notification to the media of an application to use the Bill’s powers, and the opportunity for the media to make submissions on whether this will impact on the confidentiality of a source.

It is all very well having judicial safeguards in place, but they will not work unless the judicial commissioner assessing the application has all the relevant information before applying his or her judgment and making an informed decision. After all, how can a judicial commissioner possibly know what they do not know? That is almost Kafkaesque. Without input from the media—and I recognise that there must be exceptions to this where a journalist or media organisation is under suspicion—they could not possibly, for instance, know how the use of surveillance could actually place the life of a source, or indeed of a journalist, in danger and other such considerations. In those circumstances, the important tests outlined in the Bill cannot be properly applied, and as a result the safeguards simply will not work.