The Information Commissioner has published his response to the Leveson Report. His response was overwhelming positive, agreeing with the large majority of recommendations including, in particular, the recommendations about tougher sentencing for data protection offences. This would not, however, have been clear to readers of the British press. Newspaper reports of the response concentrated on one sentence of the 20 page document dealing with one part of one recommendation.
The Recommendation in question was number 49 – concerning the removal of the right of subject access from the “journalistic exemption” in section 32 of the Data Protection Act 1998 (a recommendation qualified by reference to the need to ensure the protection of journalist’s sources was not affected). The Information Commissioner commented (on page 11 of the Response) that
“The area of subject access is particularly problematic in that there are legitimate concerns about the ‘chilling effect’ Lord Justice Leveson’s proposal might have on investigative journalism. This area will need very careful consideration. This again is a matter of balance of interests and is ultimately a matter for Parliament”.
This comment was transformed into the “Daily Mail” headline, “How investigative journalism ‘could be harmed by Leveson’, says Information Commissioner”. The words “could be harmed” do not, in fact appear in the Information Commissioner’s response. The opening paragraph of the “Daily Mail” story is wholly misleading
“Key proposals in the Leveson Report could harm investigative journalism, the Information Commissioner warned yesterday”.
The Commissioner gave no such warning and did not cast doubt on “key proposals” – but rather, raised a question about one small part of one proposal. The “Daily Telegraph” had the headline “Leveson could have “chilling effect” on journalism, Information Commissioner warns”. No such warning was given.
The Guardian did not do much better with the headline “Leveson data protection plans ‘could have chilling effect on journalism‘. Again, the words “could have a chilling effect” do not appear in the response. The “Guardian” also, wrongly, states that the Commissioner said he would “actively oppose” changes to the role of the ICO in relation to the press. What was, in fact, said was that the ICO was “not actively seeking” a wider role.
None of the newspapers mentioned the fact that the Information Commissioner had welcomed the overwhelming majority of the recommendations – and in particular, the one relating to section 55 (which, as Julian Petley’s recent series of posts have shown, the press has been campaigning against for many years, see Part 1, Part 2, Part 3 and Part 4).
The Daily Mail and Guardian stories have been tweeted on several occasions and the disinformation is spreading. In order to assist our readers who do not have time to read the full response we will endeavour to provide a more balanced and accurate account.
The relevant recommendations fall into three areas: ones directed to the Ministry of Justice concerning the press and data protection, ones made to the Information Commissioner directly and ones with data protection implications generally.
First, there are those directed to the Ministry of Justice (Recommendations 48 to 57). These concern various amendments to Data Protection legislation in relating to the press. As a general point, the Commissioner says that
“Taken as a whole package, Lord Justice Leveson’s recommendations on reforming the DPA would, if implemented, move the ICO closer to becoming a mainstream statutory regulator of the press. The significance of the proposed changes should not be underestimated. It is clearly for the Government and Parliament to consider what role the ICO should ultimately play in regulating the press“.
The Commissioner makes it clear that the ICO is not actively seeking such a role but that, ultimately, this is involves “public policy decisions” for the Government and Parliament to make (p.9).
In relation to the specific recommendations under this head
- Recommendation 48 – amendment of the exemption in section 32: The Commissioner says that this has merits but the key is creating the right balance which is a matter for Parliament.
- Recommendation 49 – narrowing of the scope of the section 32 exemption: The Commissioner says this requires careful consideration and, as already mentioned, that there are “legitimate concerns” about the chilling effect of the proposal in relation to “subject access”. It is noteworthy that he does not add any example or analysis or express a view as to whether these concerns can properly be met in amended legislation.
- Recommendation 50 – right to compensation to cover pure distress – The Commissioner strongly supports this recommendation.
- Recommendation 51 – repeal of certain procedural provisions in the DPA – The Commissioner supports this recommendation
- Recommendation 52 – provision relating to “balance” of freedom of expression and data protection regime. The Commissioner sees no difficulty with this but questions whether it is necessary.
- Recommendation 53 – provision to have regard to a recognised system of regulation. The Commissioner, again, sees no difficulty with this but suggests that it reflects existing policy and practice.
- Recommendation 54- bringing into force amendments to section 55 of DPA (custodial sentences and enhanced public interest defences). The Commissioner hopes that “there will be no further delay in implementing this recommendation”
- Recommendation 55 – extension of ICO prosecuting powers -The Commissioner agrees that there is some benefit in an express power to prosecute for related offences although believes that its powers should not be extended to cover all crimes in which personal data is processed unlawfully.
- Recommendation 56 – a new duty to consult with CPS - The Commissioner has no difficulty with this recommendation but wonders whether it is necessary to introduce a formal duty.
- Recommendation 57 – reconstitution of ICO as an Information Commission - The Commissioner agrees that the opportunity should be taken to consider this option but mentions a number of alternative models.
The Leveson Report makes then makes nine recommendations “to the Information Commissioner” (Recommendations 58 to 66). These recommendations are all substantially accepted.
Finally, there are three recommendations that impact on the work of the ICO (Recommendations 67, 69 and 70). The Commissioner “welcomes” or “agrees with” all these recommendations.
In short, the balance sheet is that of the 22 recommendations relevant to the ICO, 17 are agreed with, welcomed or strongly supported. In relation to the others, the Commissioner believes that some require further consideration or should be accepted in part and that some (those relating to the journalistic exemption) require careful consideration by Parliament. None of the recommendations are said to be “harmful”.
So, a more accurate headline would have been “Information Commissioner welcomes Leveson Data Protection Recommendations”. There could be no proper complaint if newspapers had reported the Information Commissioner’s response and then added their own comments. Unfortuately, the press has once again, sacrificed balanced and accurate reporting of facts in order to promote its own political agenda.