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Law Column: Is the ‘sky falling in’ on data protection?

Christopher Graham, the Information Commissioner, says “no” – John Battle, Head of Compliance at ITN, says “yes”.

The issue of current UK data protection law and its compatibility with journalism was addressed by some of the country’s most eminent figures, in a debate hosted by ITN and the Media Society on July 14th.

Most of the panel were in agreement that existing data protection law in the UK is far from ideal, whilst Christopher Graham was more positive about the current situation.

The issues on the agenda were:

  • the proposed new EU Regulation on data protection, with the threatened removal of the ‘special purposes of journalism’ exemption (section 32);
  • the Google ‘right to be forgotten’ ruling; and
  • the long awaited new data protection guidance from the Information Commissioner’s Office.

All three of these issues are very relevant to journalists, and could impact on day to day practices.

In his opening summary, Christopher Graham, stated that he thinks the concerns expressed in the media have been “a little overdone”, but other members of the panel were far from being in agreement.

The importance of S.32 to journalism cannot be overstated – it allows journalists to handle and store data, in a way that they would not otherwise be allowed to do, and this is vital for the operation of the industry.

One of the key statements by Christopher Graham was that S.32 is far from being lost – in fact he said: “S.32 is safe”.

Whilst the new EU Regulations do not include specific protections for journalism in the way that UK law currently does, Mr Graham was adamant that it is up to member states to decide how to implement the Regulation into law, and therefore the UK can choose to keep S.32.

The other issue that is currently having an impact on the industry is the ‘right to be forgotten’, with many publishers receiving notice that content has been removed from Google search results.

Alistair Stewart, the debate moderator, took the opportunity to put questions relating to Google’s handling of the removal requests to Peter Barron, Google’s Director of Communications EMEA.

Mr Barron shed some light on the issue, which until now, has been somewhat of a mystery. He said that the requests are being sorted into three categories: “remove”, “do not remove”, and “need more information”. Mr Barron also stressed that Google did not wish to be in the position that they are in, and that they are “treading down the middle with pressure from both sides” of the freedom of information versus privacy debate.

When asked whether it was appalling that unelected Google employees are acting as Judge and jury, Mr Barron noted that Google are being forced to act as Judge and jury, rather than wanting to be in that position.

The Google ruling sets out the principle that privacy trumps the right to information, without there having been a meaningful debate on the issue, as Anya Proops, a Barrister specialising in information law, highlighted. She went on to say that it is wrong as a matter of principle that “Google are making complicated value judgements without knowing the data”.

Joshua Rozenberg, formerly of the BBC, and now a freelance journalist, asked Peter Barron whether all of the removed links would be visible if he was to search through, rather than – the answer: “yes”.

Mr Rozenberg also raised the issue that complainants can appeal to the Information Commissioner if they are not satisfied with Google’s decision, but the publisher does not have a right of appeal. Peter Barron responded that Google is trying to be as transparent as possible and is notifying publishers when links are removed. In some cases, the publisher has responded saying that they do not agree with the decision, which, in some of those cases, has resulted in reinstatement of the links. However, he agreed that there needs to be a wider debate about the issue of an appeal structure.

Christopher Graham encouraged critics of the Google ruling to wait for complainants to appeal to his office, where they will see that the decisions are very balanced.

As John Whittingdale MP (Chairman of the Culture, Media and Sport Select Committee) stated during the debate, data protection law in the UK is in a mess at present, and worryingly, he was sceptical about the UK being able to take a different position to the EU Commission on the subject, given the UK’s current relationship with the EU.

As an observer of the debate, it was abundantly obvious to me that from the media’s point of view, the sky is indeed falling on data protection. Data protection has always been a consideration for journalists, but in recent months the status quo has shifted enormously, resulting in an uncertain operating environment.

John Battle summed the extent of the problem up quite nicely when he said: “if we’d held a data protection debate a year ago, we’d have had one man and his dog turn up. Now it pulls in big crowds”.

I think he is right – I certainly wouldn’t have been in a rush to jump on the train to London for a data protection debate this time last year….

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