January 9, 2023
The NMA reports that in a letter to the Secretaries of State for Justice and for Digital, Culture, Media and Sport, editors from the Daily Telegraph, The Times and Mail Newspapers called on Michelle Donelan and Dominic Raab to take urgent action in tackling the “damaging proposals” set out by the Information Commissioner’s proposed data protection and journalism Code of Practice. The NMA says that editors expressed their “grave concern” over the “threats the ICO Code poses to journalism and free speech in the UK”.
In the letter, the editors urged the Government to equip its proposed Bill of Rights to exempt journalism from data protection law, as in Germany, Sweden, Australia and New Zealand, to safeguard a free press in this country.
“We appreciate that the ICO is in some difficulty, as it is required under the Data Protection Act 2018 to publish a statutory code of practice, which must be taken into account by courts and tribunals. Unfortunately, in doing so it has drafted a code which we believe undermines the very basis of journalism and would turn the ICO into a statutory regulator of the media”, the letter states.
“The fundamental premise on which press freedom rests is that, while individuals have a right to privacy in their home and private lives, what they say and do in the public arena can be reported, subject to a limited range of legal restrictions such as the laws of libel and contempt.
“This is enshrined in the Editors’ Code of Practice, to which the vast majority of British journalists adhere.
“The ICO Code turns this on its head. Under the Code personal data is any information about an individual which is stored on a digital device. This includes information that is by its nature public – such as someone’s job title. It even extends to information which is not factual: ‘opinions about a person can be personal data’”.
The NMA explains that in order to report personal data, a journalist must be able to show “lawful reason”. In the NMA’s view, the proposed Code “focuses heavily on the public interest” and “requires publishers to set out their policies on how public interest decisions are taken and keep records of decisions”.
The editors argue that this will not work in a newsroom: “Fundamentally journalism is about people. Sometimes it will expose wrongdoing and failure in high places, more often it simply holds a mirror to life; usually to inform, occasionally to entertain or amuse.
“Journalism of this nature should be covered by legitimate interests, but the Code is dismissive of legitimate interests as a lawful reason. News is, by definition, what is unusual and unexpected, and therefore infinitely varied. A large news website will publish hundreds of stories a day, each requiring decisions about entirely different sets of facts”, the letter states.
The editors have urged the Information Commissioner to revisit his Code to “better reflect the realities of journalism”. However, the NMA says, this will not address the “central problem”, which is that “data protection law as it stands was never intended to regulate journalism and is wholly unsuited to do so”.
As the editors’ letter states, “Other democracies which place a high value on freedom of expression… have recognised this and exempted journalism from data protection law.
“Last month, announcing the return of the Bill of Rights to Parliament, the Justice Secretary said: ‘Free speech is a quintessentially British right, and the Bill of Rights will strengthen its protection on these shores.’
“There would be no better way of achieving that than by using this legislation to exempt Britain’s otherwise free press from the shackles of data protection law.
“There is a serious danger under the Code as proposed that no form of journalism will be immune from expensive and time-consuming legal challenge”. To read the NMA’s report in full, click here.