Data Protection Bill [HL]

Baroness Garden of Frognal Excerpts

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

[Lord Keen of Elie]

My Lords, exactly a month ago, we had an interesting debate concerning a range of amendments tabled by my noble friend Lord Black. It was a surprisingly consensual debate, and I am rather hoping for more of the same this evening. The noble Lord, Lord Stevenson, agreed that there were serious issues raised that needed to be addressed. The noble Lord, Lord McNally, agreed that the Bill needed amending to ensure that it did not undermine the work of investigative journalists. The Government have listened, as we have on so many issues raised by noble Lords, and we have tabled appropriate amendments.

Government Amendment 50 deals with the issue raised by my noble friend that the Bill applies the exemptions only where processing is for the special purposes. We heard the persuasive example of the media being penalised if, for example, 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. We agree that it is unfair and our amendment puts this right.

Government Amendment 57 concerns the list of journalistic codes of practice that appears in paragraph 24 of Schedule 2, which is also the focus of a number of amendments tabled by noble Lords, from whom I am sure we will hear in due course. In Committee, the noble Lords, Lord Clement-Jones, Lord Stevenson and Lord Skidelsky, and the noble Baroness, Lady Hollins, all highlighted that the editors’ code is incorrectly described in the Bill as the IPSO editors’ code. Having looked at this further, we concede the point and the Government’s amendment removes the reference to IPSO. The legal effect of this is nil but we should use the correct label. We are grateful to noble Lords for bringing this fault to our attention.

Government Amendment 61 is a further concession to deal with further concerns raised by noble Lords. Article 36 of the GDPR would have required investigative journalists to consult with the ICO before instigating covert filming, such as when investigating allegations of abuse against vulnerable residents at a care home. Article 44 of the GDPR might disproportionately impact on collaborative investigative journalism, including the sharing of data across borders where appropriate, such as with, for example, the Panama papers. The government amendment allows journalists to be exempted from these restrictions where the public interest test is otherwise met.

Government Amendments 150, 156 and 161, as well as a number of consequential amendments, create journalistic defences to the offences in Clauses 161 and 162 in respect of unlawfully obtaining personal data or unlawfully reidentifying de-identified data. We accept the arguments of my noble friend Lord Black that what processing is permitted for the special purposes under Schedule 2 should not be criminalised later in the Bill. These amendments remove any doubt on this matter. We wish to ensure that we do not criminalise journalistic or whistleblowing activities that are believed to be in the public interest.

Government Amendment 162 removes paragraph (c) from Clause 164(3). This measure allowed the Information Commissioner to determine prepublication whether processing could be done without reliance on the special purpose provisions. Many noble Lords felt this was a power to allow the commissioner to overreach and interfere in journalistic decisions. I am grateful for the advice of the noble Viscount, Lord Colville of Culross, together with that of my noble friend Lady Stowell of Beeston, who took the time to come and see me about this provision and further explain its dangers. The noble Lord, Lord McNally, set out similarly powerful arguments in Committee. Following further discussions with stakeholders and the commissioner, the Government have concluded that giving the commissioner power to take such enforcement action in relation to data being processed for the special purposes before the journalist or author publishes their work goes beyond what we consider is the appropriate role of the commissioner as the regulator and enforcer of the data protection legislation. With Amendment 162, the circumstances in which enforcement action would be available to the commissioner in relation to the special purposes would be limited to that of the existing position under the 1998 Act.

I will respond in full on the other amendments in this group once noble Lords have explained their intent. I beg to move.

[The Deputy Speaker (Baroness Garden of Frognal) (LD)]

My Lords, I have to inform the House that if Amendments 50 or 50A are agreed to, I cannot call Amendments 51 or 52 by reason of pre-emption.

[Baroness Hollins (CB)]

My Lords, the government amendment is excellent and I support it. However, it does not go far enough. I have therefore introduced a manuscript amendment.

My Amendment 50A would simply add two further provisions—my Amendments 51 and 52—into government Amendment 50, and would do no more than what Lord Justice Leveson recommended: to rebalance data protection law and prevent speculative trawling for stories. Operation Motorman was a police investigation in 2003, which I have mentioned before in debate, and it found that private data was being stolen on behalf of newspapers. That information, taken from private, medical, police, local authority, bank and many other confidential records, was used for stories or to hack phones. Those findings were considered by Leveson, who also reviewed the submissions of media organisations, and he was able to cut through some of the rhetoric—the kind of rhetoric that we have seen splashed across several newspapers today. He found that data protection law was fundamentally imbalanced in favour of publications at the expense of the public. That is not right. Just as the Human Rights Act strikes a balance between Article 10 speech rights and Article 8 privacy rights, so the GDPR obliges us to strike the same balance on data protection. This is not just following our own precedent; it is the right thing to do and is a legal requirement.

This amendment would implement some of Leveson’s recommendations. First, it would change the test for the exemption to apply to ensuring that the data processing in breach of the individual’s rights was necessary for future or continuing publication rather than undertaken just with a view to publication, as in the DPA and currently in the Bill. This is Leveson recommendation 48A and would protect the public from fishing operations when journalists process data without any specific intention to publish. Let me be clear: the data itself would not have to be published but the processing would need to have been done with an intention to publish—that is all. Secondly, this amendment would ensure that the exemption should be available only where the likely interference with privacy resulting from the processing of the data is outweighed by the public interest in publication. This properly strikes the balance between privacy and freedom of expression—this is Leveson recommendation 48C—and this balance is specified in the GDPR.

These amendments are the product of representations from all sides at the Leveson inquiry which sought a compromise—a way to protect the free-expression rights of publishers and to ensure that the public are protected. I thank the noble Lords, Lord McNally and Lord Stevenson, who have supported this amendment, and I also acknowledge assistance from a number of sources including the victim-representative organisation Hacked Off. I hope the House will support these reforms to bring balance to data protection law.