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Law Column: Data Protection becoming more and more relevant

footansteylogonewFrom the Google Spain ruling to the perceived threat to the much coveted “special purposes of journalism exemption”, data protection is a topic that hasn’t been far from my thoughts over the last 12 months. As such, it has been the subject of several columns already.

Last week I attended an Information Law conference, which was run by 11KBW, a London based chamber of barristers. The lasting impression I’m left with is that information law, and data protection in particular, is becoming a whole lot more relevant, especially to the media.

We have used this column time and time again to discuss the changes brought in under the Defamation Act 2013, and in particular, the new “serious harm” test contained in section 1. A year and three months down the line, the consensus seems to be that it has become more difficult to bring a successful action for defamation.

It is no secret that if a claimant wants to sue a newspaper, the first two things he or she will look to are defamation and privacy, but it has become clear that journalists now need be aware of potential claims under the Data Protection Act 1998 (the “DPA”) too. At last week’s conference, barrister Anya Proops spoke about the application of the journalistic exemption, which is the key to protecting regional publishers from claims under the DPA.

As we all know, S.32 contains an exemption for the special purpose of journalism, which means that journalists do not have to comply with many of the key provisions of the DPA, in certain circumstances. To be covered by S.32 “personal data” must be processed only for the purpose of journalism and with a view to the publication of a story. Further, journalists must reasonably believe that:

• having regard to the public interest in freedom of expression, publication would be in the public interest; and
• in all the circumstances, compliance with a particular part of the DPA is incompatible with journalism.

To be considered “personal data”, it must be reasonably likely that an individual can be identified from the data. In practical terms, this includes a very wide range of information, but at a basic level it includes names, addresses, and email addresses. To be covered by the exemption, a journalist does not necessarily need to intend to publish the personal data, but must be holding it with a view to publishing a story.

The key message, which is reiterated in the guidance published by the Information Commissioner’s Office, is that S.32 is not a blanket exemption – individual thought needs to be given to each of the requirements laid out above.

As Anya Proops highlighted at the conference last week, S.32 contains a public interest test, which may mean that some forms of journalism are not protected. For example, having regard to the importance of freedom of expression, do you reasonably believe that publishing details of a celebrity’s love life is in the public interest? If the answer is no, then certain limbs of journalism may find themselves particularly susceptible to claims under the DPA.

The above is all brought into focus by S.13, which gives individuals the right to bring a claim for compensation if he or she has suffered “damage” as a result of a breach of the DPA. If S.32 genuinely applies – no problem. But, if S.32 has been presumed to apply without proper consideration, the door is being left open wide for a valid claim to be brought.

The good news is that damages for breaches of the DPA have so far been relatively low, but even so, any damages award, along with the accompanying legal costs, is one that is best avoided.

The moral of the story is to get acquainted with S.32, and actively consider it on a daily basis. It may seem like just another legal inconvenience which simply doesn’t fit into an already hectic routine, but there is one thing I am sure about – data protection is going to be high on the agenda going forward, and failure to respect S.32 will be a definite chink in a journalist’s armour.