Media: When data protection threatens free speech

Can journalists stay this side of the law?

AHEAD OF the Human Rights Act, and in the absence of freedom of information legislation, next spring will see the media grapple with new controls on release and use of personal details as a new Data Protection Act comes into force.

Fortunately, the Act contains exemptions, but these do not protect everyone's freedom of expression and only partially protect the media. News organisations should examine their operations closely to derive maximum protection. The most helpful provisionsshould allow investigations to go on and stories to be published free from the threat of pre-publication injunctions.

But without the journalistic exemptions the media could have been virtually outlawed. The Act sets strict controls on all dealings with information relating to identifiable individuals held on computer or in structured manual files. This would cover almost every journalistic article, photograph, film, recording and transmission.

Unless the Act's conditions are fulfilled, information cannot lawfully be collected, recorded, published or held. The data protection principles require "fair" and lawful processing, as interpreted and enforced by the Data Protection Commissioner. This might mean informing the subject and obtaining consent, whether information was being collected directly from them or from third parties, or even from documentary sources. It would mean that only accurate, relevant information could be held at any one time - difficult in the course of on-going inquiries.

There are even stronger controls to cover "sensitive data" which includes information on political opinion; involvement in offences (actual or alleged) and the courts disposal of them; physical or mental health; race and ethnic origin; sexuality; trade union membership and religion.

The rights of the subject of the information are extensive. They can ask to see the information held and be told its source. They can demand a correction, even prevent publication and have evidence destroyed, if it is deemed inaccurate. There is also the right to obtain compensation for damage and distress - even if that distress was caused to someone else and nothing had ever been published. And the defence of truth or public interest would not necessarily protect journalistic investigation, reporting or publication.

Journalistic exemptions to the Act can only be relied upon in the following circumstances. First, that the information is only being used for journalistic, literary or artistic purposes. Second, the use is with a view to the publication of any such material. Third, that the journalist reasonably believes that publication would be in the public interest.

The principle of freedom of information would not prevail over data protection and personal privacy considerations under the Government's freedom of information proposals. Current experience shows how data protection can lead to a reduction in the information being released to the media and the public. The Independent has already described how the interpretation of the current Act has led to refusal by the police, and others, to supply information about crimes, accidents and those involved.

The new Act presents an even greater threat to freedom of information, giving public bodies and services, and private organisations the chance to cover up information of legitimate public interest. Media organisations such as the Newspaper Society and the Society of Editors are trying to ensure that the year 2000 does not herald an information shut down. There is still time to press for further changes.

The writer is Head of Legal and Regulatory Affairs at the Newspaper Society

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