Clegg calls for a data protection public interest defence (where there already is one)

UPDATE: 22.10.14

It appears that Clegg’s comments were in the context of proposed amendments to the Crime and Criminal Justice Bill, and the Guardian reports that

The amendments propose a new defence for journalists who unlawfully obtain personal data (section 55 of the Data Protection Act) where they do so as part of a story that is in the public interest

But I’m not sure how this could add anything to the existing section 55 provisions which I discuss below, which mean that an offence is not committed if “the obtaining, disclosing or procuring [of personal data without the consent of the data controller] was justified as being in the public interest” – it will be interesting to see the wording of the amendments.

Interestingly it seems that another proposed amendment would be to introduce custodial sentences for section 55 offences. One wonders if the elevated public interest protections for journalists are a sop to the press, who have long lobbied against custodial sentences for this offence.

END UPDATE.

In an interesting development of the tendency of politicians to call for laws which aren’t really necessary, Nick Clegg has apparently called for data protection law to be changed to what it already says

The Telegraph reports that Nick Clegg has called for changes to data protection, bribery and other laws to “give journalists more protection when carrying out their job”. The more informed of you will have spotted the error here: data protection law at least already carries a strong exemption for journalistic activities. Clegg is quoted as saying

There should be a public interest defence put in law – you would probably need to put it in the Data Protection Act, the Bribery Act, maybe one or two other laws as well – where you enshrine a public interest defence for the press so that where you are going after information and you are being challenged, you can set out a public interest defence to do so

Section 32 of the Data Protection Act 1998 provides an exemption to almost all of a data controller’s obligations under the Act regarding the processing of personal data if

(a)the processing is undertaken with a view to the publication by any person of any journalistic…material,

(b)the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and

(c)the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with [the publication by any person of any journalistic…material]

This provision (described as “extremely wide” at Bill stage¹) was considered at length in Part H of the report of the Leveson Inquiry into the Culture, Practices and Ethics of the Press, which looked at the press and data protection. Indeed, Leveson recommended section 32 be amended and narrowed in scope. Notably, he recommended that the current subjective test (“the data controller reasonably believes”) should be changed so that section 32 could only be relied on if inter alia “objectively the likely interference with privacy resulting from the processing of the data is outweighed by the public interest in publication” (emphasis added). I know we’ve all forgotten about Leveson now, and the Press look on the report as though it emerged, without context, from some infernal pit, but even so, I’m surprised Mr Clegg is calling for the introduction of a provision that’s already there.

Perhaps, one might pipe up, he was talking about the section 55 DPA offence provisions (indeed, the sub-heading to the Telegraph article does talk in terms of journalists being protected “when being prosecuted”. So let’s look at that: section 55(2)(d) provides in terms that the elements of the offence of unlawful obtaining etc of personal data are not made out if

 in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest

So, we have not just a public interest defence to a prosecution, but, even stronger, a public interest provision which means an offence is not even committed if the acts were justified as being in the public interest.

Maybe Mr Clegg thinks that public interest provision should be made even stronger when journalists are involved. But I’m not sure it realistically could be. Nonetheless, I await further announcements with interest.

¹Hansard, HC, vo1315, col 602, 2 July 1998 (as cited in Philip Coppel QC’s evidence to the Leveson Inquiry).