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Baroness Nicholson of Winterbourne moved Amendment No. 6:


Page 19, line 19, at beginning insert ("Subject to subsection (1A) below,").

The noble Baroness said: My Lords, I shall not speak to this amendment for long but I request a small hearing from your Lordships' House. I want to revisit briefly the fact that Clause 31(1)(a) embraces such a wide range of persons that it could be said to undermine to a significant extent the function of the legislation. I seek a definition in this context of the words "journalist", "journalism" and "publication". I suggest that because the word "publication" means "showing a document to another person" and because the word "journalist" has never been defined by statute, it is possible to argue that this clause, which expands the exemption from journalism to include literary and artistic material, will provide a valuable shield to those who gather and hold information for purposes other than those for which the legislation is intended.

I ask first whether the Solicitor-General will look again at the exemption because the wording used is so broad that I believe it will have the capacity in the modern world to bring in other classes of people and undermine the legislation significantly.

Secondly--I raised this point earlier--I want to revisit the concept of accuracy and to remind the noble and learned Lord that no duty of accuracy is imposed by law on print journalists and that the Press Complaints Commission code of practice does not provide an effective remedy. Indeed, it is not even a quasi-judicial procedure. In those circumstances, I can see no logic in exempting the print media from the obligation of accuracy enshrined in the fourth data protection principle. It would readily be possible to amend Clause 31(2)(a) by bracketing the fourth principle with the seventh. The noble and learned Lord knows that I have raised the issue of the necessity for accuracy in the print media previously, but I believe that if an amendment similar to this could be made in the other place it would introduce a new right which could be of considerable value to ordinary citizens.

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Finally, the balance between privacy and freedom of expression has been tilted profoundly towards the media, in this case print journalism, as the remainder of the media are already covered by the Broadcasting Act 1996 and by the earlier radio and television legislation. I remind the House that in the United Kingdom there is no right of privacy and that the exemption therefore is not a counterweight against the right of privacy in favour of a proper balance being struck for freedom of information; it is merely a heavyweight against the citizen. Indeed, other European Union nations have a right of privacy. There is a written constitutional right of privacy and therefore the balance that is supposedly struck here is no balance at all. It is a heavy thump against the rights of the individual.

At Second Reading I mentioned that I hoped that, despite the plethora of knowledge now collected about everyone globally in the electronic media, we could create an oasis of privacy for individuals by the mechanism of this Bill. This clause is such a sweeping exemption for the media that it takes away the fragile and existing rights which, slender as they are, will be demolished by this new right which was not contained in the Data Protection Act 1984. I beg to move.

Lord Falconer of Thoroton: My Lords, the insertion of the word "necessary" into the language of Clause 31 is an entirely understandable proposition. As the noble Baroness lucidly explained, the amendment is motivated by a proper concern to achieve maximum fidelity to Article 9 and to the European Convention on Human Rights. However, it is a proposition the logic of which we find to be more apparent than compelling. I shall seek to explain why we do not consider it appropriate to agree to these amendments. I am speaking now to Amendments Nos. 6 to 10 which at the moment are grouped. The noble Baroness has in effect spoken to Amendments Nos. 6 and 8 which are grouped with Amendments Nos. 7, 9 and 10 in the name of the noble Lord, Lord Lester.

4.15 p.m.

Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord for giving way. It is Amendment No. 6 that has been moved. These amendments have been grouped together. If we are to consider them together perhaps I should speak immediately to Amendments Nos. 7 and 9. I shall not speak to Amendment No. 10 because that raises a different issue about legal certainty. I shall turn to that separately later, if that is for the convenience of the House.

I rise to support Amendment No. 6 and speak at the same time to Amendments Nos. 7 and 9. I should like to take a few moments to deal with this matter because it has not been dealt with previously at any stage of the Bill. I suggest that it is our duty to do our best to ensure that the Bill properly implements binding European law, including the EC directive. If and to the extent there is a failure to give domestic effect to European law that will lead to legal uncertainty and unnecessary litigation in our courts. That may be litigation before both European courts. On a worst case scenario failure to

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implement the directive properly could give rise to a claim for damages against the United Kingdom with the British taxpayer having to foot the bill.

The task is made more difficult for your Lordships by the tortuous structure and language of the directive and the Government's desire to avoid legislating in a way that arouses hostility from the media. I am concerned that Clause 3l as it stands fails properly to implement binding European legal principles as regards the exemption for journalism, literature and art. Amendments Nos. 7, 9 and 10 seek to ensure that the exemptions for the vital right to free expression of the media and the public satisfy the European principle of legal certainty--that is Amendment No. 10, to which I shall turn later--and can be properly balanced against the right to individual privacy using the European "pressing social need" test of necessity which includes the vital European legal principle of proportionality.

In Grand Committee on 25th February the noble Lord, Lord Williams of Mostyn, rightly referred to,


    "the need to avoid unnecessary infringement of privacy".--[Official Report, 25/2/98; col. CWH 96.]

He referred to the well-known Strasbourg case law. Unfortunately, Clause 31 does not embody that test of necessity to which he referred nor to the effect of the Strasbourg case law.

The directive's preamble makes clear that the object of national laws on the processing of personal data such as this Bill is to protect fundamental rights and freedoms, notably the right to privacy recognised in Article 8 of the European Convention on Human Rights. It also states in the preamble that the approximation of national laws must not result in any lessening of the protection that they afford but, on the contrary, must seek to ensure a high level of protection in the Community. The directive's preamble also states that the processing of personal data for the purposes of journalism or literary or artistic expression, in particular in the audio-visual field, should qualify for exceptions--I quote the key words--


    "in so far as this is necessary to reconcile the fundamental rights of individuals with freedom of information and notably the right to receive and impart information, as guaranteed ... in Article 10 of the European Convention [on Human Rights]".

I emphasise the word "necessary", echoing the test of necessity in Articles 8 and 10 of the European Convention, to define the extent of exceptions that may lawfully be made to the rights to free expression and personal privacy. Perhaps I may be forgiven for taking time on this matter. Article 9 of the directive states that member states shall provide for exceptions or derogations for the processing of personal data carried out solely for journalistic purposes for the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.

Article 9 uses the key tests of objective necessity to justify any exemption of the media from their obligation to respect personal privacy when obtaining, using or publishing personal data. The directive is made within the framework of the European Convention on Human

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Rights that binds all member states. I repeat that the right to free speech under Article 10 of the convention is subject to exceptions that are sufficiently precise to comply with legal certainty and which are necessary to protect, inter alia, the right to personal privacy guaranteed by Article 8. Similarly, the right to personal privacy guaranteed by Article 8 is subject to exceptions that are sufficiently precise to comply with the principle of legal certainty and which are necessary to protect, among other things, free speech under Article 10.

A balance must be struck and maintained in the end by the courts between the conflicting rights based on the test of necessity and proportionality. I would be surprised if the noble and learned Lord the Solicitor-General disagreed with any of that. If he does I am sure that he will tell us. The case law of the European Court of Human Rights also makes it quite clear that protection under Article 10 of the convention of the role of the media as investigative journalists, purveyors of information and as public watchdogs on matters of public interest is essential to a healthy democratic society. The Strasbourg court has emphasised that people in public life cannot use the right to personal privacy to prevent or inhibit the media from communicating matters of legitimate public interest and concern to the public.

But the European court has also made it clear that the right to free expression is not absolute. It must be balanced using the test of necessity and proportionality against the right to personal privacy. For its part, in Luxembourg the European Court of Justice has made it clear, too, that when interpreting European Community law, including directives, regard must be had to the principles in the European Convention on Human Rights governing free speech and personal privacy. My concern is that Clause 31 as it stands unamended authorises interference with the right to personal privacy by the media in breach of the directive and Article 8 of the European Convention on Human Rights.

The media exemption in Clause 31(1) relates to all of the data protection principles apart from the seventh principle; that is, the right of access to personal data under Clause 7; the right to prevent processing likely to cause damage or distress under Clause 9; the right to rectification or destruction of inaccurate data under Clause 12; and the rights in relation to automated decision-taking under Clause 13. The media exemption in Clause 31(1) also applies to sensitive personal data, for example about an individual's physical or mental health or his or her sexual life.

In view of the sweepingly broad scope of the media exemption it is very important to scrutinise with particular care the limits placed on the exemption in Clause 31 and the safeguards against the misuse of personal data. In my opinion, the safeguards contained in Clause 31 fail to satisfy the vital European principles of proportionality and legal certainty. Perhaps I may go through them in turn. Clause 31(1)(a) provides that to be within the media exception the processing must be undertaken with a view to the publication by any person of any journalistic, literary or artistic material. That merely establishes that the data processing must be done for journalistic, etc. purposes and not for a collateral purpose.

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Clause 31(1)(b) provides that the data controller must reasonably believe that, having regard in particular to the general importance of the public interest in freedom of expression, publication would be in the public interest. Of course, the data controller is not an independent person but a person who alone, jointly or in common with other persons in the media organisation--say, the Independent, Sunday Times, Daily Telegraph or Daily Mail--determines the purposes for which and the manner in which personal data are obtained, stored and published. All that Clause 31(1)(b) requires is that the data controller should have a reasonable belief that publication of the personal data would be in the public interest having regard in particular to the special importance of the public interest in freedom of expression.

Clause 31(1)(b) does not require the data controller to have a reasonable belief that publication would be necessary in the public interest to protect the rights of the media and those to whom they publish to freedom of expression, but merely that he reasonably believes that publication would be in the public interest. The data controller does not have to believe that the harm done to the data subject's right to personal privacy, whether because of the unfair and unlawful way in which the data had been processed, or because of the inaccuracy or outdated nature of the data, or because of the damage or distress caused to the individual, outweighs and is disproportionate to the public interest in free expression. Still less does the data controller have to show that his belief is objectively justified in accordance with the well-known principles of the European convention and Community law.

I turn then to the third limb, which is Clause 31(1)(c). That requires the data controller to have a reasonable belief that in all the circumstances compliance with that provision--that is, with any of the provisions protecting personal privacy covered by the exemption--is incompatible with the special purposes; that is, incompatible with the purposes of journalism. Once again, there is no requirement that the data controller's belief should be that it is necessary and proportionate to invade the individual's right to privacy in the interests of the conflicting right to free expression.

Clause 31(3) provides that, in considering whether the data controller's belief that publication would be in the public interest was or is a reasonable belief, regard may be had--not "must"--to his compliance with any code of practice. As it stands, that is no real safeguard but a thing written in water. There is no requirement that there should be a code of practice. Even if there is a code, there is no requirement that the code should include the test of necessity to justify the interference with the right to personal privacy. The Press Complaints Commission's current code does not include a test of necessity. By contrast, the Broadcasting Standards Commission's code is stronger in requiring a privacy infringement to be justified by an overriding public interest in disclosure.

The codes are not to be legally binding under the Bill. Nor is there any obligation for the courts to have regard to the codes in deciding whether the data controller's belief is a reasonable belief. I shall return to Clause

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31(3) under Amendment No. 10. The present amendments to Clause 31(1)(b) are most modest. The amendment leaves intact the concept that it is for the data controller to form a reasonable belief, but it requires the data controller to have a reasonable belief, not just that the publication of personal data is in the public interest, especially of free expression, but that it is necessary in the public interest; in other words, the amendment requires the data controller to have a reasonable belief that the obtaining, storing or publishing of personal data is necessary in the interests of free expression and does not involve a disproportionate interference in the right to personal privacy.

In my view that is the minimum--I emphasise "minimum"--needed if Clause 31 is properly to implement the directive and properly to comply with Article 8 of the convention. It is less satisfactory in some respects than my noble friend's amendment, but it is better than the illusory safeguards contained in Clause 31 as it stands. It probably does not go far enough, because, unlike my noble friend's amendment, it does not import the test of objective necessity required by the convention.

In a case in which I had the privilege of acting for the Sunday Times many years ago, the European Court made it clear in the thalidomide judgment that the adjective "necessary" does not have the flexibility of words such as "reasonable". If the Government will not accept my noble friend's amendment, I hope that they will accept my modest amendment on the basis that half a loaf is better than no bread.

Curiously enough--this is a matter that I am sure will concern the media--the Government's indication of the amendments they propose to introduce to the Human Rights Bill in another place in the interests of free speech and of the press, which are modelled on this Clause 31, are likely to authorise unnecessary prior restraints on free speech for the very same reason that Clause 31 is likely unduly to authorise unnecessary interference with personal privacy. In each case, the vice is the same--a failure to introduce the principle of necessity and proportionality as the touchstone for determining whether interferences with the fundamental human rights are justifiable.

The print media and the chairman of the Press Complaints Commission, the noble Lord, Lord Wakeham, are in my view profoundly mistaken, hilariously profoundly mistaken, ironically profoundly mistaken, in welcoming the Government's declared intention to amend the Human Rights Bill in that way. An amendment modelled on this Clause 31 will make it easier to obtain privacy injunctions against the media than is permissible under Article 10 of the convention. The press is being hoist with its own petard. It would have been much wiser to have heeded the wisdom of the Data Protection Registrar, Elizabeth France, and to have accepted the well-modulated tests in Article 8 and Article 10 of the convention as the basis for Clause 31, while leaving the Human Rights Bill well alone.

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I apologise for having taken so long to explain the matter, but, if I am right, Parliament is being asked to authorise legislation which does not do the job that it was designed to do, which is to implement the directive and convention law properly.


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