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Baroness Turner of Camden: My Amendment No. 104 is in this grouping. I have listened to what the noble Baroness, Lady Nicholson, said on Amendment No. 97. I do not agree. I do not believe that because one has accepted perhaps quite minor public office, it renders one immediately "open season" as regards the press. The effect of the amendment might well be precisely that. I am simply not in favour of it.
I turn to Amendment No. 104. At Second Reading we had a discussion on Clause 31. I expressed my concern about the exemption in regard to journalists in relation to public interest. We have seen in the recent past that the media tend to define public interest very widely indeed. It often seems sufficient that there should be some curiosity about particular individuals who may not even be known to a wide public until a story is unearthed and duly written up.
I know, of course, that we have to balance against that Article 10 of the European Convention on Human Rights, which upholds the right to freedom of expression, subject to certain considerations which are spelled out in various places.
It seems to me that Clause 31 provides a let-out where public interest is involved. Individuals are entitled to a form of redress where their rights are violated, and it is redress that concerns me. We have the PCC, and reference has already been made to codes of practice. It seems to me that they are often breached. It is difficult to see how there can be an adequate form of redress if individuals are damaged--and they often are--if there is no means of compensating them except through the libel courts. As we know very well, those are often not available to people of moderate means.
I am not here concerned about the well off. They can look after themselves and are quite capable of taking action in the courts, and very often do so. I am concerned about people who do not have access to those resources, and who, perhaps only by accident, stray into
I raised the point at Second Reading. I believe that there is a certain amount of support for the amendment publicly because there has been a good deal of concern recently about damaged individuals. I beg to move.
Lord Williams of Mostyn: Yes, I am responding to Amendment No. 97B. Perhaps it is useful to set out the Government's stance in principle on the media generally. I do not limit it to print media but include broadcast media.
The directive speaks in quite wide terms about various activities. They are journalistic, literary and artistic. It is therefore an unwise, over-narrow focus to confine ourselves simply to newspapers or, more widely, even to the broadcast media.
Our stance is quite plain. Whatever the occasional inconveniences, and whatever sometimes the blemishes, we believe adamantly in the necessity for as free a press in the widest sense as can possibly be achieved.
There are occasions when those in public life, or those whose life is of genuine public interest, may suffer slings and arrows. We believe that in a civilized free community the press ought to have as abundant a range of freedoms--and I include journalistic, artistic and literary activity--as is possibly achievable. That relates to every remark I make about any amendment or any debate on clause stand part which relates to Clause 31. That is our general stance. Throughout the summer and autumn months we have been in close co-operative consultation with various representatives, not simply of the press, certainly the noble Lord, Lord Wakeham, from the PCC, but also representatives of the BBC, Channel 4, the independent television companies and, not to be forgotten at all because they are of great importance in our national life, regional newspapers.
The Act of 1984 offers no exemption to the media. Our new Bill offers the opportunity to provide one. I deal with them in the order, if I may, in which the amendments were spoken to, and my note indicates that the first was No. 95B, followed by No. 97B, followed by No. 103B, which were the first three the noble Viscount moved.
We see Amendments Nos. 95B, 97B and 103B going in different directions to each other, and we believe they upset what we have tried to achieve, namely a careful reconciliation in Clause 31 with the privacy protections elsewhere in the Bill. We see as the key starting point that the Bill as a whole establishes a regime to protect the privacy of personal information, quite independently
Amendments Nos. 95B and 103B would in effect weaken the media exemptions in ways which we believe to be inappropriate. Amendment No. 95B would introduce an unnecessary reference to privacy into the heart of a clause, which is intended, as I said earlier, to counterbalance the ample and detailed privacy protections elsewhere in the Bill. The basic regime is there without Clause 31. Amendment No. 103B would replace a provision which allows compliance with media codes to be introduced into the equation where it is relevant, with the requirement every time to run a standard test of compliance or otherwise; in other words the simple difference between "may" and "shall". We believe that would place excessive weight on codes which are intended to be a factor in the general balancing equation.
Amendment No. 97B goes in the opposite direction. If it removes Clause 31(1)(c), it would leave only two tests which would have to be met for a media data processor to qualify for the exemption. It would omit, therefore, the perfectly reasonable test of apparent incompatibility with the special purposes of compliance with a data protection mechanism. If the media controller can perfectly well do his job in conformity with the data protection regime, we intend that he should do so. He only needs to be protected in departing from the normal data protection law requirements where he reasonably believes he has no real option, and that is why Clause 31(1)(c) is there. That is what it is intended to provide.
We want to establish proper gateways for freedom of expression, and we believe that Clause 31 would become rather too wide for comfort in one sense and too narrow in another sense, and we suggest that Amendment No. 97B ought not to be accepted. Of course, this is quite a difficult and delicate balance. We are always open to suggestions, but we believe that these suggestions are not appropriate.
I revert to a general point which the noble Baroness, Lady Turner of Camden, made, which is that people vary in resource and indeed in resourcefulness. Without specifying any particular recent cases, it is notorious that some public figures--let us only think of the past five to 10 years--have used their financial ability to silence, to stifle at birth almost, legitimate media inquiries into their malpractice. The examples are too notorious for me to mention. Here, we are deliberately avoiding the opportunity for those whose activities are being legitimately scrutinised from stifling any proper journalistic investigative activity. Not every investigative story is perfect. Not all journalists are perfect, in my experience. But I believe that there is a strong principle for which we contend, namely that a free press--warts and all--is necessary to us.
I turn now to Amendment No. 97 in the name of the noble Baroness, Lady Nicholson of Winterbourne. This relates to the question of individuals who are neither elected nor appointed to public office. Already, in the serried throngs against us on Clause 31, there is a divergence of view. The noble Baroness, Lady Turner of Camden, robustly, as always, made plain her disagreement with the approach adopted by the noble Baroness, Lady Nicholson of Winterbourne.
I am paraphrasing fairly brutally, but we believe that defining the right to privacy with reference to election or appointment to public office simply does not work. If someone puts themselves forward for election to public office, does that make them a public figure for the purposes of the considerations of the noble Baroness, Lady Nicholson? Answer came there yes, sotto voce, but I picked it up--and that is not covered by her amendment, of course. The noble Baroness's amendment refers to individuals neither elected--and there must be many in the Liberal Party who are not elected, although they have stood for election--nor appointed to public office.
The definitions are extremely difficult. One asks the question whether, for instance, a particular police officer, who undoubtedly, in our view, is a public servant worthy of scrutiny, has been appointed to public office? Has a doctor, for instance, or a school teacher? I would suggest that the difficulties here are very great and they cannot be dealt with by what I suggest at the moment is a blunderbuss, because it does not even cover what the noble Baroness wishes to cover. However, I quite accept that she is raising the principle for the discussion to be developed.
I entirely accept the proposition from the noble Baroness, Lady Turner of Camden, that simply because the public is interested does not necessarily qualify a story, an article or a comment piece as being in the public interest. There are difficult lines to be drawn, and this is why we have given particular thought to the protections we believe the individual is entitled to--the general scheme of the Bill--and the protections that journalistic, artistic and literary activity must have (Clause 31).
Clause 31 requires a balanced judgment to be made between the importance of freedom of expression and whether the public interest is served by publication of personal data. The jurisprudence in Strasbourg is very well known indeed in putting a very high weight on freedom of expression, and this Government endorse that view.
Subsection (3) of the clause provides that, when considering whether the data controller's belief that the public interest was served was a reasonable one, regard may be had to the data controller's compliance with any relevant code of practice designated by the Secretary of State. Such a code of practice would itself need to provide guidance on the factors to be taken into account when determining how the public interest is served by
Next in chronological order is Amendment No. 106, which relates to the designation of codes of practice. I say respectfully that the noble Viscount is quite right in pointing out that Clause 49 allows the data protection commissioner to produce her own code of practice on any aspect of the data protection regime. Such codes do not replace the law, but they will undoubtedly help in its practical interpretation. The commissioner would, I confirm, be free to produce a media data protection code, among others. The Government would not intend to designate it for Clause 31(3) purposes unless it was one that the industry themselves had collectively agreed; in other words, that they were joint owners of it. That would preserve our basic purpose of giving media defendants themselves the opportunity to run an additional freedom of expression argument where Clause 31(1)(b) was at stake.
We have designed Clause 31(3) to provide designation of any codes which have been prepared. In that we include such bodies as the Independent Television Commission, the Broadcasting Standards Commission, which are, of course, statutory bodies, and the Press Complaints Commission, a non-statutory regulatory body.
In respect of the PCC, the noble Lord, Lord Wakeham, made it plain in the late summer and autumn months that he thought that the existing code was not sufficient, and he certainly laboured manfully to produce an improved version. However, he has never said that the present version is entirely an immaculate conception, and he is perfectly open to reasoned propositions about how it might be improved.
Viscount Astor: I am sorry to interrupt the Minister but, just before he leaves that subject, I wonder whether I could ask him one brief question. I quite understand what he said about codes of conduct, but in relation to statutory codes as opposed to non-statutory codes he said that there would not be a code with which the industry did not agree. Would it not be better to put something in this clause stating that the commissioner could not produce her own new code or any other code that was in any way in conflict with another statutory code?
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