Just when journalists thought legal threats to press freedom in Britain couldn’t get any worse, along comes another menacing piece of legislation. After the Investigatory Powers Act, correctly nicknamed the snoopers’ charter, and the law commission’s proposal for a new Espionage Act that could transform journalism into spying, comes the data protection bill.
This bill, now making its way through parliament, has the potential to inhibit investigative journalism. It has alarmed news broadcasters and newspapers alike. Yet thanks to the domination of our media landscape by Brexit, the bill has not received anything like enough attention. That is a grave oversight.
During its second reading in the Lords on 22 November, there were two excellent but under-reported speeches that all politicians who support press freedom should take to heart. As Lords Colville and Black contended, MPs need to understand the serious implications of allowing clause 164 to be enacted without amendment.
Viscount Colville, better known as Charles in the world of TV production, pointed out that the clause gave the information commissioner power to determine, prior to publication, whether a journalist’s handling of personal data is relevant and therefore legal.
That is one giant leap backwards from the state of play under the existing act. At present, if personal data is processed only for journalism (or for academic inquiry), and its publication can be deemed to be in the public interest, then journalists are exempt from rules that prohibit such personal inquiries.
In common with jurisdictions elsewhere in the world, that journalistic exemption has been considered fair and reasonable. How can journalism work otherwise? How can power be held to account if that power is able to stifle investigations into itself?
Without wishing to be unduly pompous about a trade that, sadly, is not held in the highest public esteem, the whole point of journalism in a democracy stands to be undermined by this new data protection clause. Sinners could well escape proper scrutiny.
Colville’s main worry is about the deleterious effects on secret filming and recording, a method of gathering information in the public interest used by current affairs broadcasters. Under the new clause, it would be necessary for the documentary maker to seek approval from the information commissioner in advance of filming.
But where are the criteria for her to make such a decision? What tests should she apply to a request by a journalist? I am sure the commissioner, Elizabeth Denham, has many excellent qualities, but journalism is not her field. She lacks the editorial expertise and background that would enable her to make the right call.
As Colville argued, the clause would result in the information commissioner’s office (ICO) attempting to make “fine editorial judgments, including whether the investigation could or should have been advanced by using less intrusive means”. That is, in effect, a form of prior restraint on the activity of journalism.
Imagine the time spent ahead of the event by producers and reporters wrangling about whether their methodology is compliant with the act. Then imagine the next stage: complaints after the event by people arguing that the act was not applied properly.
It was a scenario outlined by Lord Black, better known as Guy in his day job as executive director of the Telegraph Media Group. “Given that these powers bite pre-publication”, he said, “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”.
Both Colville and Black were telling it like it is in the real world of journalism. Our trade is acutely aware that the highest-profile targets of our investigations are the most avid users of the law to prevent the public from knowing what they have done. Lawyers will rub their hands should clause 164 survive.
I understand that there is particular concern at the BBC, whose lawyers argue that important investigations may have been halted in their tracks by the ICO’s extended powers. These include the Winterbourne View care home abuse story and the recent Panorama programme on student-loan fraud.
BBC reporters would not contemplate using covert filming on the off chance of catching someone misbehaving. Those kinds of fishing expeditions have long been outlawed. And although critics of the press might think otherwise, the same has been the case in recent years in newspaper newsrooms under the editors’ code of practice.
There is more, however, to trouble us. If I read the bill’s provisions correctly, there is a yet another pitfall for one of journalism’s key sources of public interest information: whistleblowers. They, in company with the reporters they contact, risk being criminalised for obtaining and retaining personal data without consent.
Taken with the Investigatory Powers Act, this would represent yet another hurdle journalists face in trying to encourage people to come forward and provide valuable information about wrongdoing.
I understand, of course, the need to balance the right to data protection against the right to freedom of expression. There is a gulf between what people believe should be kept private and what journalists believe should be published or broadcast. The deciding factor must be public interest. But that balance has been observed for the best part of 20 years without undue controversy. So why the need for change?
According to the briefing paper produced by the ICO before the Lords debate, it was the information commissioner who requested a broadening of her powers in order to determine whether journalists deserve their exemption. This is cast in the document as little more than “a necessary technical change”.
Necessary? Technical? That justification needs rigorous interrogation. I cannot imagine that Denham wishes to prevent journalists from going about their work as freely as possible. I prefer to believe that she knows not what she is doing or, more likely, what others will do should her request succeed. Parliament must not wave this bill through.
Why the Sun speaks with a forked tongue
The Sun is nothing if not flexible. Its pro-Brexit stance has been unyielding, but it is careful to address readers in Ireland about the issue less trenchantly than readers in the UK.
Here’s the “advice” offered to Ireland’s “naive” prime minister, Leo Varadkar, in an editorial in the newspaper’s English version: “Shut your gob and grow up.” Accusing him of failing to act constructively on the border question, it said: “He is too busy disrespecting 17.4 million voters of a country whose billions stopped Ireland going bust as recently as 2010.”
By contrast, the editorial on the same day in the Irish version did not call on Varadkar to shut up. Although it deplored “sniping” between him and Theresa May, it understood “the frustration” his administration was feeling.
There was yet another message to buyers in Northern Ireland: a watered-down variant of the English editorial. “It’s tempting”, it said, “to ask young Leo to shut his beak, respect the UK’s decision and get on with his job.”
Why does the Sun speak with a forked tongue? Because principle must be sacrificed to pragmatism in order to avoid upsetting different audiences.
Jailed source deserves backing from journalists
Spare a thought for Robert Norman, a prison officer who supplied a Trinity Mirror reporter with public-interest information over a five-year period in return for payments amounting to £10,000.
It resulted in stories about staffing cuts at the high-security Belmarsh jail, threats to warders and management errors. He acted as a whistleblower in the belief that the publisher would respect his confidentiality. Instead, the company revealed his identity to the police and he was sentenced to a 20-month jail term for committing misconduct in a public office.
Now Norman is appealing against his conviction at the European court of human rights. His lawyers – good for them – are acting on a pro bono basis. All journalists should support him on the basis that his victory would secure greater protection for confidential sources.