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Law Column: No Brexit for data protection laws


How will Brexit affect journalists and  publishers? Editorially: more news in the last three weeks than the previous three months and enough controversy to keep comment pages and business pages full for weeks to come. Financially: already the weaker pound is affecting purchasing power, eminent forecasters are predicting a recession shortly, but in the longer term, it is anyone’s guess. And legally? a brief canter through relevant legislation and recent legal developments leads to the conclusion that Brexit will not have a dramatic effect on the legal landscape.

The key legislation that governs contempt, defamation and privacy is home grown and is likely to be unaffected. Similarly the Freedom of Information Act is unlikely to change. The only threat to the FOI came from within Parliament (both Labour and Tories) but was rejected in March by a cabinet office committee.

Plans for the repeal of the Human Rights Act and the enactment of a new British Bill of Rights are not strictly relevant because the Human Rights Act incorporated the European Convention on Human Rights which is not EU legislation. Whatever the new Bill of Rights turns out to be, it is unlikely to restrict newspaper freedoms because the British establishment, unlike some of our European counterparts does not favour privacy over freedom of expression.

So that leaves personal data. This is the one area where a major change in EU legislation was expected to have a big impact on the UK.

The General Data Protection Regulation (GDPR), coming as it does 20 years after the Data Protection Act 1998, is the EU’s response to the revolution in information technology and its impact on consumers’ personal data.

When the DPA was first enacted, Google had only just launched and Facebook’s Mark Zuckerberg was 14. The rationale of the GDPR is to wrest some control over personal data away from the technology companies that profile us, track our purchases, access to our photos, email accounts and purchase history, and give it back to the individual.

The GDPR is a regulation, so while we are still  in the EU it will have direct effect and becomes law without the need for domestic legislation. It is likely that the UK will not have left the EU by the time it is in force in May 2018.

It also seems likely in the long term because UK companies, including publishers, will still need to comply with the GDPR if they want to do business in Europe. So, what sections of the GDPR will have the most dramatic effect on publishers?

There are three new consumer ‘rights’ in the GDPR which could affect newspapers’ freedom of expression. They are the ‘right to rectification’, the ‘right to be forgotten’ and the restriction of processing.

Firstly, if individuals believe their personal data is inaccurate (for example in an article about them), they will be able to require that it is corrected.

Secondly, individuals will also be able to demand that their personal data is erased (i.e. forgotten), if it fails to satisfy the requirements of the GDPR, such as fairness and lawfulness, for example.

The newspaper publisher, in its role as ‘data controller’ must respond to these demands ‘without undue delay’ and in any event within a month.

Thirdly, individuals will be able to require that the information be removed from the website while their complaint is being investigated. The fear in media law circles is that this may act as a kind of temporary injunction where someone could have a story taken down for the very period that it is newsworthy, while it is being investigated.

These three rights will have to be balanced by the right to freedom of information and expression. The publisher will be able to be able to resist the demand for erasure if the processing is lawful and its use is for the journalistic purpose. However a lot of time and resources will have gone into investigating and dealing with the complaint in the meantime.

So the irony is, that about the same time as we are expecting to exit the EU in 2018, journalists and publishers will be required, as a matter of law, to comply with – you guessed it –  a significant new EU law.