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

Arts and Entertainment
Reawakening: can Jon Hamm’s Don Draper find enlightenment in the final ‘Mad Men’?
tv reviewNot quite, but it's an enlightening finale for Don Draper spoiler alert
Arts and Entertainment
Breakfast Show’s Nick Grimshaw

Have you tried new the Independent Digital Edition apps?
Arts and Entertainment

ebooksNow available in paperback
Arts and Entertainment

Arts and Entertainment

Arts and Entertainment
'Youth' cast members Paul Dano, Jane Fonda, Harvey Keitel, Rachel Weisz, and Michael Caine pose for photographers at Cannes Film Festival
Arts and Entertainment
Adam West as Batman and Burt Ward and Robin in the 1960s Batman TV show

Arts and Entertainment
I am flute: Azeem Ward and his now-famous instrument
Arts and Entertainment
A glass act: Dr Chris van Tulleken (left) and twin Xand get set for their drinking challenge
TV review
Arts and Entertainment
MIA perform at Lovebox 2014 in London Fields, Hackney

Arts and Entertainment
Finnish punk band PKN hope to enter Eurovision 2015 and raise awareness for Down's Syndrome

Arts and Entertainment
William Shakespeare on the cover of John Gerard's The Herball or Generall Historie of Plantes

Arts and Entertainment

Game of Thrones review
Arts and Entertainment
Grayson Perry dedicates his Essex home to Julie

Potter's attempt to create an Essex Taj Mahal was a lovely treat

Arts and Entertainment
A scene from the original Swedish version of the sci-fi TV drama ‘Real Humans’
Arts and Entertainment
Hugh Keays-Byrne plays Immortan Joe, the terrifying gang leader, in the new film
filmActor who played Toecutter returns - but as a different villain in reboot
Arts and Entertainment
Charlize Theron as Imperator Furiosa in Mad Max: Fury Road
Arts and Entertainment
Jessica Hynes in W1A
tvReview: Perhaps the creators of W1A should lay off the copy and paste function spoiler alert
Arts and Entertainment
Power play: Mitsuko Uchida in concert

Arts and Entertainment
Dangerous liaisons: Dominic West, Jake Richard Siciliano, Maura Tierney and Leya Catlett in ‘The Affair’ – a contradictory drama but one which is sure to reel the viewers in
TV review
Arts and Entertainment
Richard Herring, pictured performing at the Edinburgh Fringe Festival two years ago
Arts and Entertainment
Music freak: Max Runham in the funfair band
Arts and Entertainment
film 'I felt under-used by Hollywood'
Latest stories from i100
Have you tried new the Independent Digital Edition apps?

ES Rentals

    Independent Dating

    By clicking 'Search' you
    are agreeing to our
    Terms of Use.

    Sun, sex and an anthropological study: One British academic's summer of hell in Magaluf

    Sun, sex and an anthropological study

    One academic’s summer of hell in Magaluf
    From Shakespeare to Rising Damp... to Vicious

    Frances de la Tour's 50-year triumph

    'Rising Damp' brought De la Tour such recognition that she could be forgiven if she'd never been able to move on. But at 70, she continues to flourish - and to beguile
    'That Whitsun, I was late getting away...'

    Ian McMillan on the Whitsun Weddings

    This weekend is Whitsun, and while the festival may no longer resonate, Larkin's best-loved poem, lives on - along with the train journey at the heart of it
    Kathryn Williams explores the works and influences of Sylvia Plath in a new light

    Songs from the bell jar

    Kathryn Williams explores the works and influences of Sylvia Plath
    How one man's day in high heels showed him that Cannes must change its 'no flats' policy

    One man's day in high heels

    ...showed him that Cannes must change its 'flats' policy
    Is a quiet crusade to reform executive pay bearing fruit?

    Is a quiet crusade to reform executive pay bearing fruit?

    Dominic Rossi of Fidelity says his pressure on business to control rewards is working. But why aren’t other fund managers helping?
    The King David Hotel gives precious work to Palestinians - unless peace talks are on

    King David Hotel: Palestinians not included

    The King David is special to Jerusalem. Nick Kochan checked in and discovered it has some special arrangements, too
    More people moving from Australia to New Zealand than in the other direction for first time in 24 years

    End of the Aussie brain drain

    More people moving from Australia to New Zealand than in the other direction for first time in 24 years
    Meditation is touted as a cure for mental instability but can it actually be bad for you?

    Can meditation be bad for you?

    Researching a mass murder, Dr Miguel Farias discovered that, far from bringing inner peace, meditation can leave devotees in pieces
    Eurovision 2015: Australians will be cheering on their first-ever entrant this Saturday

    Australia's first-ever Eurovision entrant

    Australia, a nation of kitsch-worshippers, has always loved the Eurovision Song Contest. Maggie Alderson says it'll fit in fine
    Letterman's final Late Show: Laughter, but no tears, as David takes his bow after 33 years

    Laughter, but no tears, as Letterman takes his bow after 33 years

    Veteran talkshow host steps down to plaudits from four presidents
    Ivor Novello Awards 2015: Hozier wins with anti-Catholic song 'Take Me To Church' as John Whittingdale leads praise for Black Sabbath

    Hozier's 'blasphemous' song takes Novello award

    Singer joins Ed Sheeran and Clean Bandit in celebration of the best in British and Irish music
    Tequila gold rush: The spirit has gone from a cheap shot to a multi-billion pound product

    Join the tequila gold rush

    The spirit has gone from a cheap shot to a multi-billion pound product
    12 best statement wallpapers

    12 best statement wallpapers

    Make an impact and transform a room with a conversation-starting pattern
    Paul Scholes column: Does David De Gea really want to leave Manchester United to fight it out for the No 1 spot at Real Madrid?

    Paul Scholes column

    Does David De Gea really want to leave Manchester United to fight it out for the No 1 spot at Real Madrid?