In the recent weeks of political furore, readers may have missed the publication on 5 July of the Digital Economy Bill. The Bill contains a ragbag of provisions from controlling access to online pornography to regulation of the BBC.
However, it is Part 5 entitled “Digital Government” which is perhaps most striking for media lawyers since it contains a number of real curiosities including potentially a number of new criminal offences which could apply to journalists publishing leaked material.
The first curiosity of Part 5 is simply its title. It is not really about digital government as such, it is actually a scheme for information sharing among public authorities. In particular, it provides for a series of “gateways” to allow the disclosure of public information:
- to improve public service delivery (clause 29);
- to gas and electricity suppliers (clause 30);
- by gas and electricity suppliers (clause 31);
- by a civil registration official (clause 38);
- to reduce debt owed to the public sector (clause 40);
- to combat fraud against the public sector (clause 48);
- for research purposes (clause 56); or
- to the Statistics Board (clause 65).
The information in question can and no doubt often will be shared digitally, but there is nothing in Part 5 which restricts it to the digital realm. Equally, the Part has nothing to say about what one might consider to be other aspects of “digital government”, for example the making available of public services online or the securing of public digital infrastructure. Those who anticipated a major step forward in digital government will be rather disappointed.
The second curiosity is that Part 5 appears to proceed on the basis that there is a pre-existing general strict prohibition on the sharing of information among public authorities. For example the explanatory notes state (at paragraph 29):
“The Bill provides the necessary legal framework to enable data sharing for a public benefit and will be a key enabler for the government transformation plan …” [emphasis added]
But in fact there is no pre-existing general strict prohibition on of the sharing of information among public authorities and in most cases the proposed provisions will be wholly unnecessary.
It is true there are some prohibitions in legislation such as section 19 of the Commissioners for Revenue and Customs Act 2005, section 123 of the Social Security Administration Act 1992, section 50 of the Child Support Act 1991 and section 39 of the Statistics and Registration Service Act 2007. All of these impose criminal liability for disclosure of information held by certain public authorities, but they are all in very specific areas.
Of course, the Official Secrets Act 1989 also creates a series of offences for the disclosure of official information but the nature of the information in question is very limited (for example information relating to security and intelligence or defence matters).
In short, there is currently no general statutory restriction on public authorities disclosing information to each other (or to anyone else).
It is also true that in disclosing any information in any circumstances a public authority is subject to the general public law requirement that it act rationally. However, all of the disclosures envisaged and ostensibly permitted by Part 5 would plainly already come within that requirement.
Conceivably there may be some private law restrictions on the disclosure of information by a public authority, for example the information may be said to be confidential or its disclosure to be defamatory. However, this seems extremely unlikely in the situations envisaged by the Bill. These situations are likely to constitute public interest occasions for the purposes of breach of confidence and any such disclosure is very unlikely to meet the test for the disclosure to be defamatory under section 1 of the Defamation Act 2013.
Finally, of course all public authorities have to comply with the Data Protection Act 1998 (the “DPA”) which could in certain instances restrict the disclosure of personal data. However, the Bill does not assist in this regard since it does not apply to any disclosure which contravenes the DPA (see for example clauses 32(7) and 41(7)).
The third curiosity is perhaps the most serious (and must be seen in the light of the second), is that Part 5 creates a number of new criminal offences (at clauses 33, 34, 42, 50 and 58) imposing criminal liability on those who receive the information and then disclose it to third parties. For the offence to be committed, the information in question must constitute “personal information”, which is information which relates to and identifies a particular “person”, including a body corporate (clause 32(4)). This is a bizarre definition which means that, contrary to ordinary language and the use of the term in other legal contexts, any information about an identified company would be “personal information” – even something as anodyne as information that a particular company has a number of government contracts.
Even more significantly, these provisions would also impose criminal liability on the third parties who receive the information if they subsequently disseminate it. In both cases, the offences would be committed even if the disclosure of the information by the original public authority (absent the provisions of the Bill) would not itself constitute a criminal offence.
In addition, the proposed defences are very limited, for example where the disclosure was for the purposes of preventing loss of human life or responding to an emergency. No general public interest defence is currently included.
So imagine if an official at the Environment Agency discloses some information to a say, a local authority, to “improve public service delivery” pursuant to the provisions in clause 29. An individual at the local authority considers that this information reveals a serious iniquity relating a corporate entity and passes it on to a journalist on a national newspaper. The newspaper then publishes the information. It would appear that under these provisions the individual at the local authority, the journalist and most probably the newspaper would all be committing criminal offences.
By contrast, if the official at the Environment Agency had equally taken umbrage with the information in question, he or she had revealed it to the journalist and it had been published on those circumstances, it is unlikely that any offence would have been committed.
There seems no logic in that. It is true that it might be a somewhat rare circumstance when these conditions might apply but making criminal disclosures of any information in any situation is surely something which should be done only with the greatest of care, not least because of the consequences to freedom of expression.
So for these reasons, the media should be alive to these provisions and would be prudent to oppose them in their current form.
Dan Tench is a partner in the Litigation Department at Olswang LLP.
Very many thanks for highlighting this Dan!!