The Information Commissioner’s Office (ICO) has backed Non-Governmental Organisation Global Witness in its battle over protecting its journalistic sources. Diamond billionaire Beny Steinmetz, his company, BSGR, and three individuals associated with him had filed High Court claims under the Data Protection Act 1998, alleging that the NGO’s reporting of a bribery scandal in West Africa was infringing their privacy.
Mr Steinmetz and the others made subject access requests to Global Witness under section 44 of the Data Protection Act in what was seen as an attempt to force it to disclose its confidential sources, and also sought a determination under section 45 from the ICO about Global Witness’s claim to be protected by the Act’s journalistic exemption.
But the ICO has decided that Global Witness is entitled to the protection of section 32, which exempts data processors from many requirements of the Act – including subject access requests – when personal data is only being processed for the special purposes of journalism, art or literature.
In addition, the processing must be taking place with a view to publication of some material, and the data controller must have a reasonable belief that publication is in the public interest and that compliance with most of the data protection principles will be incompatible with journalism.
The ICO said in a letter to Global Witness dated December 15 that, based on the information it had, it was “satisfied that Global Witness can rely on the exemption under section 32 of the DPA to withhold the personal data requested by the data subjects in their subject access requests“.
The letter said the ICO was “satisfied that it is likely that Global Witness has met all four elements of section 32 and can, therefore, rely on the special purposes exemption to decline to comply with the data subjects’ subject access requests“.
It added that on August 13, 2013, it had made an assessment that Global Witness was unlikely to have complied with the requirements of the DPA in relation to Mr Steinmetz’s subject access request, but went on:
“This assessment was based solely on the information provided to us at that time. In view of this new information, we have revised our initial assessment of Mr Steinmetz’s concern; it is now our view that Global Witness is likely to have complied with the requirements of the DPA in this case.”
The claim launched by Mr Steinmetz and his executives was seen by legal observers as an attempt to open up a new front in the war between corporations facing investigations by journalists.
But the ICO’s decision to issue a determination in favour of Global Witness confirms that the Section 32 exemption for journalism applies to anyone engaged in public-interest reporting, not just the conventional media.
Leigh Baldwin, one of Global Witness’s investigative journalists, said:
“It is a victory for press freedom because it defines journalists by what they do, not whom they work for. With non-traditional media playing a growing role in exposing corruption and human rights abuses, all journalists-and their sources-need to know they can rely on the same protections available to the mainstream press.“
Global Witness has since late 2012 been reporting on a continuing controversy about BSGR and its acquisition of part of Simandou, thought to be the world’s largest untapped iron ore deposit.
The ICO’s Determination Notice should bring about the effective end of Mr Steinmetz’s High Court claim over the Data Protection Act – if he and the other individuals wish to appeal against it they will have to go to the First Tier Tribunal, formerly the Information Tribunal, then the Upper Tribunal and finally on to the Court of Appeal.
This article originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.