In a letter last week, coordinated by the News Media Association to the Secretaries of State for Justice and for Digital, Culture, Media and Sport, editors expressed their grave concern over the threats the ICO Code poses to journalism and free speech in the UK.
In their letter, editors have urged Government to equip its proposed Bill of Rights to exempt journalism from data protection law – as in Germany, Sweden, Australia and New Zealand - in order to safeguard a free press in this country.
“We appreciate that the ICO is in some difficulty, as it is required under the Data Protection Act 2018 to publish a statutory code of practice, which must be taken into account by courts and tribunals. Unfortunately, in doing so it has drafted a code which we believe undermines the very basis of journalism and would turn the ICO into a statutory regulator of the media,” the editors said.
“The fundamental premise on which press freedom rests is that, while individuals have a right to privacy in their home and private lives, what they say and do in the public arena can be reported, subject to a limited range of legal restrictions such as the laws of libel and contempt.
“This is enshrined in the Editors’ Code of Practice, to which the vast majority of British journalists adhere.
“The ICO Code turns this on its head. Under the Code personal data is any information about an individual which is stored on a digital device. This includes information that is by its nature public – such as someone’s job title. It even extends to information which is not factual: ‘opinions about a person can be personal data.’”
In order to report personal data, a journalist must be able to show a ‘lawful reason’. The Code focuses heavily on the public interest - and requires publishers to lay down policies on how public interest decisions are taken and keep records of decisions.
The editors argue this will not work in a newsroom: “Fundamentally journalism is about people. Sometimes it will expose wrongdoing and failure in high places, more often it simply holds a mirror to life; usually to inform, occasionally to entertain or amuse.
“Journalism of this nature should be covered by legitimate interests, but the Code is dismissive of legitimate interests as a lawful reason. News is, by definition, what is unusual and unexpected, and therefore infinitely varied. A large news website will publish hundreds of stories a day, each requiring decisions about entirely different sets of facts.”
The editors have urged the ICO to revisit their Code, to better reflect the realities of journalism. But this will not address the central problem, which is that data protection law as it stands was never intended to regulate journalism and is wholly unsuited to do so, says the News Media Association.
“Other democracies which place a high value on freedom of expression… have recognised this and exempted journalism from data protection law.
“Last month, announcing the return of the Bill of Rights to Parliament, the Justice Secretary said: ‘Free speech is a quintessentially British right, and the Bill of Rights will strengthen its protection on these shores.’
“There would be no better way of achieving that than by using this legislation to exempt Britain’s otherwise free press from the shackles of data protection law.
“There is a serious danger under the Code as proposed that no form of journalism will be immune from expensive and time-consuming legal challenge.”
The full list of signatories is:
- Chris Evans, Editor, The Daily Telegraph
- Tony Gallagher, Editor, The Times
- Ted Verity, Editor, Mail Newspapers
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