On 4th September, the Information Commissioner's Office (ICO) published its guidance on data protection law and the media,
In a blog post, Christopher Graham, the Information Commissioner, described the new guide as a "thoroughly practical tool, designed to help those who work in the news media, at all levels, to understand their obligations under the Data Protection Act."
The publication of the guidance follows a specific recommendation arising from the Leveson Inquiry which advocated changes to the Data Protection Act (DPA) in order to strengthen an individual's privacy rights. In the continued debate over press freedom, the ICO conducted a thorough consultation with both the media and general public before producing the new guide.
The ICO's guidance attempts to strike the fine balance between privacy rights and freedom of expression. In particular, it contains detailed coverage of the journalism exemption provided for under section 32 of the DPA (which disapplies data protection obligations where certain conditions are met). The ICO summarise the application of the exemption as follows:
- Section 32 can exempt the media from most provisions, in appropriate cases - but never principle 7 (security) or the section 55 offence.
- The only purpose must be journalism (or art or literature), with a view to publication.
- The data controller must reasonably believe publication is in the public interest, taking into account the general public interest in freedom of expression, any specific public interest in the subject, and potential harm to individuals.
- The data controller must reasonably believe compliance is incompatible with journalism – i.e. it would be unreasonable or impractical to comply. This must be more than just an inconvenience.
- Media organisations are expected to be able to explain why the exemption is required in each case, and how and by whom this was considered at the time. The ICO does not have to agree with the organisation's view and must be satisfied that a reasonable belief was held.
In addition to publishing the full guidance document, the ICO has also released a quick summary guide for the media, a response to the consultation, as well as some general advice for the public on data protection issues with the media.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
