In an entertaining speech in the House of Commons on 7 September 2010 in a debate on freedom of information the Labour MP, and former President of the NUJ, Dennis MacShane made an interesting and provocative proposal.  The debate concerned some modest measures to tighten up the Freedom of Information Act 2000 (“FOIA”).  However, Mr MacShane introduced a radical suggestion: that the Act should be extended in its scope to cover not just public authorities but also private media organizations and other bodies which receive state funding. This is what he said:

“I would like to see the Freedom of Information Act extended to all those organisations and companies that have any formal status within the public realm. We have referred to the fourth estate, and it is time for freedom of information laws to extend fully to all our media organisations. They have far more power than many public agencies, local councils and the rest, which are covered by FOI legislation. What our media organisations and the oligarchs – often from overseas – who own them decide to do has a huge impact on our public life, and any company that is in receipt of taxpayers’ money should also be covered by FOI”.

The proposal is noted in the Press Gazette without comment but it will obviously not be popular with media organisations. On his blog David Higgerson points out the difficulties of defining “the media” and casts doubt on Mr MacShane’s motivation.

At first sight, this suggestion appears to be entirely contrary to the usual understanding of freedom of information: to give citizens access to information about the workings of their government.   There is, however, an international precedent for extending “freedom of information” provisions more widely than governmental organisations.  Section 32 of the Constitution of South Africa is headed “Access to Information” and provides:

“(1) Everyone has the right of access to-

(a) any information held by the state; and

(b) any information that is held by another person and that is required for the exercise or protection of any rights”.

In other words section 32(1)(b) extends “freedom of information” to any private person or body when the information is “required for the exercise or protection of any rights”.

This provision was recently considered by the South African High Court in the case of M & G Limited and Others v 2010 FIFA World Cup Organising Committee South Africa Limited [2010] ZAGPJHC 43 (8 June 2010). The case concerned a request for information concerning tenders for the World Cup in South Africa in 2010.  The judge conducted a careful analysis of the meaning of “public body” and decided that the Committee was acting as a public body when records in respect of tenders were brought into existence.  He then went on to consider the alternative submission that  that the applicants should in any event be given access to the records because they require the records “for the exercise and protection of their right to freedom of the media“.  The judge accepted this submission.

This conclusion means that even under the South African system, a private individual – someone who was not professionally involved in the acquisition and dissemination of information – could not make a successful freedom of information request against a media organisation.   However, such a request could be made by one media organisation against another – obvious recent examples spring to mind where one newspaper is investigating the activities of another.

There are, nevertheless, extremely powerful arguments against Mr MacShane’s proposal to extend freedom of information to media organisations.   In the age of blogs it is difficult to say where “media” ends and the ordinary citizen begins.  As the Canadian Supreme Court pointed out in the case of R v National Post

“the protection attaching to freedom of expression is not limited to the “traditional media”, but is enjoyed by “everyone” (in the words of s. 2(b) of the Charter) who chooses to exercise his or her freedom of expression on matters of public interest whether by blogging, tweeting, standing on a street corner and shouting the “news” at passing pedestrians or publishing in a national newspaper.” [40].

An extension of FOIA to everyone exercising “expression rights” would, potentially, involve extending it to all private bodies.

Furthermore, the policy considerations relating to access to information held by public and private bodies are fundamentally different.   Public bodies produce information at public expense, purportedly for the public benefit.   There are obvious and powerful policy considerations favouring the public accessibility of such information.   In contrast, the “media” almost always consists of private bodies gathering information for private purposes.   The media is usually paid for by public money.

It should also be remembered that private individuals do have access to “personal data” held by media organisations – “data subject access requests” can be made under section 7 of the Data Protection Act 1998.   This is designed to balance the rights of the media and the privacy rights of individuals and it seems to us that the balance is more or less right.

Mr MacShane’s suggestion was perhaps intended as a tease – and to provoke debate.  It seems to us that there are powerful arguments that, as in South Africa, freedom of information should, in some circumstances, be extended to private individuals and bodies.  But there is no proper reason for singling out media organisations.