The DPA s. 32 exemption: what is journalism?

By Gervase de Wilde

Publisher: Gervase de Wilde
Date of Publication: 21 Jan 2015

The end of 2014 saw two key events in the developing area of the law relating to data protection and the media. Following a consultation, the Information Commissioner’s Office (ICO) published, on 4 September 2014, its guide for the media on Data Protection and journalism (“the Guide”). On 15 December 2014, the ICO made an assessment of the application of an exemption contained in the Data Protection Act 1998 (DPA) found at s. 32, which applies to the publication of “journalistic, literary or artistic material”, in a dispute between diamond millionaire Beny Steinmetz and charity Global Witness (“the Assessment”). Both of these are helpful in understanding to what extent journalism – in all its different varieties – is protected from the burdens imposed on data processors by the DPA. The question of exactly what kinds of publication, or, to use an unpleasant term, “content”, are journalism is hotly contested: as well as having wide-ranging legal implications, it’s often the opening salvo for critics (“that’s not journalism!”) and a refuge for those with an undeclared agenda of their own (“that’s not lobbying – it’s journalism!”).

The introduction to the Guide carries a disclaimer to the effect that it “does not have any formal legal status and cannot set any new rules”. However, it does set out in some detail how to comply with the existing law and follow good practice. It can therefore be relied on by both media organisations and others in taking decisions about Data Protection, and by those seeking to challenge those decisions. The first public example of this reliance is to be found in the dispute between Mr Steinmetz and Global Witness.

Global Witness has been investigating the acquisition of the Simandou iron ore concession in Guinea by Mr Steinmetz’s company, Beny Steinmetz Group Resources (“BSGR”) and has published a series of press releases about the deal, alleging corruption on the part of BSGR. Mr Steinmetz and three associates made subject access requests under s. 7 of the DPA. Global Witness (advised at this stage by David Hirst of 5RB) refused, relying on the s. 32 exemption. Mr Steinmetz then brought proceedings in the High Court for breaches of the DPA, during which Global Witness sought a stay of the proceedings under s. 32(4) DPA which provides for proceedings to be stayed until a determination is made by the Commissioner under s. 45, or until the claim is withdrawn.

The ICO did not make a determination under s. 45, instead fulfilling the role set out for it under s. 42 DPA, which provides for it to make

“an assessment as to whether it is likely or unlikely that the processing has been or is being carried out in compliance with the provisions of this Act”.

Both the Assessment and the Guide follow the same scheme in their approach to the exemption, tracking the criteria laid down by s. 32(1). The approach taken is to consider whether: (1) the processing is only for journalism, art or literature (“the special purposes”); (2) the processing of the personal data is undertaken with a view to publication; (3) the data controller has a reasonable belief that publication is in the public interest; and (4) whether compliance with the relevant provision is incompatible with the special purposes. It is the first and third of these criteria that help in understanding what is or may be journalism for the purposes of the s.32 exemption.

In relation to the first criterion, the question of whether processing is for the purpose of journalism, the Guide says that this should be interpreted broadly. It refers to the ECJ’s ruling in the Satamedia case (C-73/07) and the observations of the Supreme Court in Sugar v BBC [2012] UKSC 4; [2012] 1 WLR 439. The Guide accepts that non-media organisations may be able to invoke the exemption where their purpose in processing the information is to publish information, opinions or ideas for general public consumption. This applies even if they are not professional journalists and the publication is part of a campaign to promote a cause or achieve an objective.

This passage is quoted almost verbatim in the Assessment. The Assessment also emphasises the requirement of exclusivity which is found in the Guide, i.e. that the exemption covers data which are processed only for journalism and not for other purposes, something which is obviously more relevant where it is a non-media organisation which is seeking to rely on the exemption. Both the Guide and the Assessment helpfully give examples of where the processing is used for other purposes such as “promoting your services or for research purposes” (the Assessment) and “political lobbying or fund-raising campaigns” (the Guide). This emphasis serves as a warning to non-media organisations who seek to rely on the exemption, that they should keep a distinct and exclusive journalistic purpose in mind for the processing. It also indicates an area where that reliance might be open to challenge.

A recent decision of the ECHR, Braun v Poland [2014] ECHR 1189 , which post-dates the publication of the Guide, also underlines the breadth of the protection afforded by Article 10. The Court reiterated, at [47], that the Convention “offers a protection to all participants in debates on matters of legitimate public concern”. It held that the Applicant, who was a historian, the author of press articles and television programmes and someone who actively and publicly commented on current affairs should not have effectively been deprived the protection of Article 10 by the domestic court by being held to a higher standard of proof in relation to allegations made than that of due diligence and good faith which applied to professional journalists. A “journalist” of this kind would, however, because of the mixed nature of their work, face exactly the kind of problems in coming within the exemption envisaged by the writers of the Guide and the Assessment.

In relation to the second criterion, the question of the data controller’s reasonable belief in the public interest, this is divided in the Guide into two sections. The first asks “What is the public interest?” and the second addresses the “Reasonable belief of the data controller”. The latter condition introduces a subjective element to the Defendant’s conduct which is not generally present in privacy claims, where the public interest is considered objectively. In its commentary on the former condition, the Guide explicitly recognises the inherent public interest in freedom of expression itself, and accepts that there is a public interest in the full range of media output “from day-to-day stories about local events to celebrity gossip to major public interest investigations”.

This represents a significant change from the Draft Guide, which recognised only that the public interest in freedom of expression itself “might be enough to justify a very minor technical exemption from the DPA.” The Guide is a correct statement of the law. It reflects the statutory wording, in that s. 32(1)(b) qualifies the need for the data controller to have a reasonable belief in the public interest in publication with the proposition that this belief must be held “having regard in particular to the special importance of the public interest in freedom of expression”. Any ambiguity on this point is further clarified by the fact that, when the Bill received its second reading in the House of Lords, Lord Williams of Mostyn, the Parliamentary Under-Secretary of State, Home Office, said of the clause which became s. 32:

“I believe for the first time in an Act of Parliament in this country, that the public interest is not the narrow question of whether this is a public interest story in itself but that it relates to the wider public interest, which is an infinitely subtle and more complicated concept”.

This clause did not, as Lord Williams commented at the same reading of the Bill, appear by way of “Christmas accident” but was inserted as a deliberate policy, following discussions with the media themselves.

The Guide says that the public interest in freedom of expression itself does not automatically mean that publication is in the public interest and that a consideration of the public interest “must involve an element of proportionality” since it cannot be in the public interest to interfere disproportionately with fundamental privacy and data protection rights. The need for any infringement of Article 8 rights to be justified by reference to the contribution made by the information or data to a debate of general interest is, however, one which reflects the existing state of the law. The balancing of rights which this entails is one which is regularly undertaken both by journalists themselves, and those who advise them.

So, journalism which does not come within the definition of “public interest journalism”, in the strict Article 10 sense of that term, nevertheless benefits from the exemption, unless it involves a serious infringement of data or privacy rights. The prospect of gossip and show business columns disappearing beneath a tide of data protection complaints, although undoubtedly welcomed by some who feature in them, is not, it seems, something which will be ushered in by the Guide. And where there is a campaigning or investigative element to the publication, then a reasonable belief in the public interest should be relatively easy to demonstrate. This much is clear from the Assessment’s reference to Global Witness’s statement in support of its position about the importance of raising public awareness around the Simandou deal, .

Media corporations and other large organisations which process personal data are still getting to grips with the reach of the DPA. And the obligations that they find themselves under may change if a “right to be forgotten” is introduced in the near future. What the publication of the Guide and, now, the Assessment, suggest is that the traditional media should not face significant further burdens under the DPA because of the way the s.32 exemption is framed. And non-media organisations may also be entitled to the protection it provides, although a more conscious effort to come within it may be required on their part. The arguments about what is and isn’t journalism will continue but, if anything, these recent developments have, like other changes in the media landscape, made the scope of the term wider.