Data Protection Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

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

[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.