Leveson Principles underpinned in 133 words of legislation: no need for an extensive law – Chris Pounder

3 12 2012

4Have you followed all the hand wringing by Government about the statutory underpinning of the Leveson Principles? Have you seen the press coverage equating statutory underpinning with state control?  Evidently the Government say there are pages and pages of legislation to draft in order to underpin, in law, an independent self-regulatory body for the Press. So in the spirit of “Jamie’s 15 Minute Meals” here is a statutory underpinning of the Leveson Principles in 133 words of law.

Like Jamie’s meals, this works, tastes well and involves very light touch supervision of any independent self-regulatory body which is established by the press. There is little risk that the supervision of the independent self-regulatory body will morph into fully fledged statutory control of the press. And my changes rely on legal provisions that the Press have accepted for over a decade.

Don’t believe me? Too good to be true? Well follow the argument: all you need to do is replace Section 3 of the Data Protection Act in order to change the definition of the “Special Purposes”.

This new Section 3 reads as follows:

New Section 3 of the DPA – The Special Purposes

3(1)  A data controller processes personal data for “special purposes” if the processing occurs for:

(a) journalistic purposes where the data controller is subject to an independent self-regulatory body that operates under the Leveson Principles, or
(b) artistic purposes, or
(c) literary purposes.

3(2)  In this section “the Leveson Principles” are the set of actions, adjudications, decisions, objectives, policies, procedures or rulings which are described by Recommendations 1 to 47 of the Executive Summary of “An Inquiry into the Culture, Practices and Ethics of the Press”, HC 779, November 2012”.

3(3)  When determining the scope of any “Leveson Principle” account can be taken as to any relevant explanation, commentary, or amplification outlined in the Leveson Report (Volumes I to IV) and, for the absence of doubt, all  “Leveson Principles” are interpreted purposively.

Explanatory commentary on the impact of section 3(1)

  1. These changes do not change the position with respect to artistic and literary material. They do not focus on the content of any journalistic material; only the regulatory structure in which journalism operates.
  2. All the existing current freedom of expression protections for the Press in the DPA, that have satisfied the press since 1998, remain intact.
  3. There is no change to the current regulatory regime if a data controller is processing personal data for journalism and is regulated by an independent self-regulatory body operating under the Leveson Principles. In these circumstances, there will be very little additional regulation by the Information Commissioner because the Special Purposes have a special enforcement mechanism which balances Article 8 (private life) and Article 10 (freedom of expression). The widely scoped exemption in Section 32 still applies to the processing and the Special Purposes defence to the S.55 offence is available. Thus, if journalism is regulated by the Leveson Principles, there is no change to the data protection regime.
  4. If, however, a data controller ignores or opts-out of the independent self-regulatory body, or does not accept its procedures or findings etc, then it might not be able claim the processing is for journalistic purposes. This means the processing of personal data can be fully subject to the Act, the Commissioner’s powers, data subject rights and the exemption in Section 32 does not apply. The defence to the S.55 offence is not available.
  5. In this way, paragraphs (a) and (b) underpin the Leveson Principles by statute. Any dispute as to which paragraph (a) or (b) applies can be resolved under existing powers (this is the Determination by Commissioner as to the special purposes in Section 45 of the DPA). Note that there is an already established Appeals mechanism with respect to a determination (there again, accepted by the Press since 1998) which allows the Commissioner’s determination to be challenged.
  6. Lying beyond the system of Appeals to the Tribunal under the DPA are the UK Courts and ultimately the European Human Rights Court in Strasbourg. This allows issues concerning “freedom of expression” to be explored in their entirety and provides a counter-balance to the Commissioner’s misuse of powers.
  7. Note that if an independent self-regulatory body is not really independent, there is no special status for the processing of personal data for journalistic purposes. This should stop the independent voluntary regulatory body returning to “the old ways of doing things” (as per the current Press Complaints Commission).
  8. The use of “an independent self-regulatory body” in new Section 3(1)(a) means there can be more than one independent self-regulatory body (e.g. the Scottish Government want this).
  9. The changes in new Section 3 do not implement the other more controversial data protection proposals suggested in the Leveson Report that restrict the scope of the Section 32 exemption. These proposals need a different amendment and a wholly different debate.
  10. Note that all sorts of blogs etc could count as “journalism” if there is adherence to an independent Code of Practice – perhaps a separate Code of Practice for bloggers and internet could emerge. Who knows? That is for the independent self-regulatory body to work-out.
  11. The Code of Practice produced by an independent self-regulatory body can be underpinned by Parliament under Regulations such as the ““Data Protection (Designated Codes of Practice) (No. 2) Order 2000” which, there again, the Press have not contested on free speech grounds since 1998. This Order underpins the current Code of Practice that applies to the Press.

The only departure from Leveson is that if there is an issue concerning an independent voluntary regulatory body, the statutory regulator who will be approached is the Information Commissioner and not OFCOM. This makes sense because, after all, any conflict will be about privacy and the processing of personal data. As this is the case, the ICO is the obvious independent regulator to choose.

I should add that I support the Leveson recommendation that the single Information Commissioner should be replaced by a collegiate Commission. I would add that such a Commission should also incorporate the other Commissioners who have a finger in the privacy supervisory pie (e.g. Surveillance Commissioner; Interception of Communications Commissioner etc).

Explanatory commentary on the impact of sections 3(2) and 3(3)

In the modest change I propose, the journalistic Special Purpose is linked to an independent self-regulatory body operating under the Leveson Principles. These Principles are defined in terms of Recommendations 1 to 47 (Pages 32-38) of the Executive Summary of “An Inquiry into the Culture, Practices and Ethics of the Press”, HC 779, November 2012”, and where necessary, amplified by Leveson’s full Report. The Leveson Principles have to be interpreted “purposively” – this means there should not be arguments about the literal meaning of words.

I think the threat that the ICO could determine that the journalistic purpose is no longer a Special Purpose, on the grounds that an independent self regulatory body has diverted from the Leveson Principles, would be sufficient encouragement for the Press to implement and maintain the standards outlined by Leveson.

Each Press “data controller” is free to take their chances if they want to ignore the independent self regulatory body it has set up.

Finally, if there emerges a legal constraint restricting the freedom of the press, this dispute can be taken all the way to Strasbourg on Article 10 grounds.

General Commentary on the implementation of the Leveson Principles

It is common ground that the “Leveson Principles” are acceptable to all political parties; the only issue is whether they should be underpinned by statute. Part of the problem re the legislative underpinning is that length of legislation that is needed. The more law there is, the more legal hooks there are for those “troublesome lawyers” or “interfering politicians” to make hay while the sun shines.

My approach avoids this prospect because there is hardly any new law. It is the Information Commissioner who makes the “Determination of Special Purpose” (under section 45 of the DPA) and undertakes subsequent enforcement action subject to an appeals process accepted and unchallenged by the Press for over a decade.  That is why I support a collegiate Commission; I think such a determination – given its importance – should not be the preserve of a single Commissioner.

It is important to stress, contrary to what the tabloid Press is often reporting, Leveson was very careful NOT to make comments on how the Press should report matters and the content of any new Press Code of Practice. He says in paragraph 60 of the Executive Summary that “It is not my role to seek to establish a new press standards code or to seek to be determinative about the way in which the independent self-regulatory body goes about its business”. Leveson expects that the new body will draw up a new Code of Practice; he states that “The Code Committee should advise the new body which itself would take ultimate responsibility for its content and promulgation”.

So in conclusion I would argue that a 2000 page report, millions of words, over a hundred witnesses, and the main conclusions of a one year public inquiry can be boiled down to 133 words of law. Done and dusted; no need for lengthy legislation at all.

I wonder whether the Guinness Book of Records has taken notice?

This post originally appeared on the Hawktalk Blog and is reproduced with permission and thanks


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10 12 2012
Law and Media Round Up – 10 December 2012 « Inforrm's Blog

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