Data Protection Bill [HL]

Baroness Hollins Excerpts

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

[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.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, in this group of amendments I support government Amendment 50 and oppose, therefore, the plainly incompatible manuscript amendment to which the noble Baroness, Lady Hollins, just spoke. Its incompatibility is surely obvious. First, and perhaps most critically, in proposed new sub-paragraph (2)(a) it would substitute the words,

“necessary for the future or continuing publication”,

for the Minister’s words,

“being carried out with a view to the publication”.

There would be two important consequences of that. First, as the noble Baroness said, it would involve establishing the necessity of processing, plainly a steeper and more exacting test to be satisfied than the test of processing “with a view to” publication. I respectfully suggest that necessity is too high a hurdle to demand with regard to processing data in these most important areas of our life—journalism, academe, art and literature. Linked to that, the proposed change would seriously inhibit prepublication preparatory work, most obviously and particularly work of investigation and research with a view to publication but which may in the end never result in publication.

As the noble Baroness also rightly told your Lordships, the second change from the Minister’s draft is the proposed addition by her of new sub-paragraph (2)(c), which again is designed to stand as a possible obstacle to the journalistic processing of data. Essentially, I am sure it will be accepted that Amendment 50A attempts to tip the balance rather against journalists and others who are seeking to invoke these exemptions. They tend to introduce a presumption in favour of privilege whereas I suggest it ought properly to be a presumption in favour of freedom of speech.

I would respectfully remind the House of Section 12 of the Human Rights Act 1998, which is headed “Freedom of expression”. It basically forbids any restraint on pretrial publication unless the court or tribunal,

“is satisfied that the applicant is likely to establish that publication should not be allowed”;

and it requires that particular regard be had to the importance of the convention right to freedom of expression and, so far as journalistic, literary or artistic material is concerned, regard also to the extent to which publication would be in the public interest.

I respectfully urge the Minister to stick with his draft, brought before us in the shape of Amendment 50.

--- Later in debate ---

Tabled by

[Baroness Hollins]

50A: Schedule 2, page 142, line 1, leave out sub-paragraph (2) and insert—
“(2) Sub-paragraph (2A) applies to the processing of personal data carried out for the special purposes if—(a) the processing of the personal data is necessary for the future or continuing publication by a person of journalistic, academic, artistic or literary material,(b) the controller reasonably believes that the publication of the material would be in the public interest,(c) the likely interference with privacy resulting from the processing of the data is outweighed by the public interest in publication.(2A) The listed GDPR provisions do not apply to the extent that the controller reasonably believes that the application of those provisions would be incompatible with the special purposes.”

[Baroness Hollins]

My Lords, I want to take a moment to respond to some points made by noble Lords who do not support my amendment. I suggest that they protest too much. Some noble Lords have suggested that the necessary test is too high, but I stress that the amendment simply requires an intention to publish, not a requirement to publish. I also understand that in 1998 the noble Lord, Lord Lester, argued that the provision “undertaken with a view” was too speculative. He did not support it at that time, so it is surprising that he opposes my amendment today.

My advice from eminent lawyers is that these amendments do not in any way breach human rights law. Instead, they reinstate an equal balance between freedom of speech and personal privacy. Nor is there any reason why, for example, this amendment would require footage from Hillsborough to be destroyed. It would stop newspapers hanging on to data illegally for any unspecified period. That is just one of the good things this amendment would do. The amendments would not allow debate on necessity from the subject of a planned story. The subject would not know about it, and many journalists have commended the importance of these amendments.

I have thought about these amendments. I think there has been some wilful misrepresentation of the role of the Press Recognition Panel. None of the amendments in this or the later group would favour Impress over any other recognised independent regulator. The noble Lord, Lord Black, implied in Committee that he believed that IPSO would meet the Leveson criteria if it applied to the Press Recognition Panel for approval. It could move towards recognition, so to say that this is about trying to favour Impress is nonsense.

I remind the House that my family was subject to data-fishing trips with no genuine public interest. Have the media changed their behaviour? I suggest not and I give a couple of quick examples. IPSO is not the game changer that has been suggested. It is still not a very clean game. I remind noble Lords of a couple of front page code breaches followed by tiny footnotes for a correction with no equivalent prominence. “1 in 5 Brit Muslims’ sympathy for jihadis”.

“Queen backs Brexit”. These reflect some of the most important topics being debated in the country today, yet they are not corrected adequately. Or the Mirror front page: “Ebola terror as passenger dies at Gatwick”.

In fact, nobody had Ebola, there was no terror because nobody knew about it and it was not at Gatwick. The Mirror printed a tiny apology and IPSO did nothing about it. Or the lady who lost a huge amount of weight and agreed to a feature in a local magazine which described her successful weight loss. She said she had had to shower before she lost weight because she could not fit in the bath. The Daily Star picked up the story: “Too fat to wash! Grubby gran who weighed 27 stone didn’t bath for 20 years”. This was not true, was not the story and IPSO did nothing.

I have listened to the Government’s arguments. All that Amendment 50A does is to raise the bar for processing data to be “necessary” for an intended future publication. I am an academic myself. I argue that the ethical standard of the processing of personal data being necessary is a standard that is already in place in our universities. These are Lord Justice Leveson’s recommendations. He considered that the Data Protection Act was not in balance. I think that it is right that the public’s privacy rights and publishers’ free expression rights are properly balanced to protect the best of both. We will not make progress in achieving this balance by some of the hyperbole we have seen in the press and in the House today about these amendments. We will make progress by listening to all sides, considering the arguments and coming to a reasoned conclusion. That is what Sir Brian Leveson was appointed to do.

I have heard the suggestion of noble Lords that it is not the right moment to vote on this amendment and that there is going to be an opportunity to debate these issues further in the new year, by which time, perhaps, we will have the result of the consultation that was begun as an urgent 10-week consultation a year ago, on the day that a previous amendment in a similar vein was to be voted on in the other place. We have still not got the report from that consultation. I think I want to wait to see what is going to emerge from the consultation and I hope that it will be forthcoming before we reach Third Reading.

Amendment 50A not moved.