‘Is data protection the new defamation?’

Dr Judith Townend (@jtownend)Centre for Law and Information Policy, Institute of Advanced Legal

Studies

2nd Winchester Conference on Trust, Risk, Information and the Law, 21st April 2015

Q: Is data protection the new defamation?

“If the headline asks a question, try answering ‘no’” Andrew Marr, My Trade, 2005, p. 253

Q: In what ways is data protection likely to affect media practice? Is this comparable to the impact of defamation law?

The reach of defamation

• Libel has been of longstanding concern to journalists and the media, for its complexity and high-cost

• The ‘chilling effect’ metaphor used to describe deterrence of public interest reporting, at a pre and post publication stage

• Recent reforms supposed to counter – even ‘reverse’ the chilling effect but …

The reach of defamation

a. Unclear if new reform through Defamation Act 2013, and potential reform of costs, will liberate media and journalism in the way it was intended

b. Difficult to measure this, owing to lack of baseline data and very patchy records of litigation – in and outside court

Very little systematically documented

• Barendt et al (1997) identified that writs and cases in court were only the tip of the libel iceberg, but we don’t even know much about them!

• Even MoJ was unable to put together systematic data for Impact Assessments on Defamation Bill and proposed costs reform

Credit: Uwe Kils (iceberg) / User:Wiska Bodo (sky), via Wikimedia Commons

A few findings

My empirical research project involving online journalists and bloggers, media lawyers and specialists, established that between 2008-13:

• Though privacy perceived to be on the rise, concerns still centred on libel, with more threats and litigation in this area

• Data protection rarely mentioned as area of primary concern for journalists and media lawyers (though this wasn’t a focus of the research) – probably because of section 32 exemption in Data Protection Act 1998

Section 32 exemption

S32, Data Protection Act 1998

Journalism, literature and art(1) Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if—

(a) the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,(b) the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and(c) the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes

Survey findings I

Online surveys conducted in 2013 of over 200 journalist and blogger respondents asked about experiences of breach of privacy/confidence and libel

• The effect of libel was more pronounced than privacy, in the way it led to substantially changing or abandoning stories that respondents considered in the public interest

• A group of ‘hyperlocal’ respondents seemed less reactive/affected by either libel or privacy law than a ‘general’ group of respondents

• Respondents reported fewer privacy than libel claims and a similar pattern emerged where very few, if any, ended up as a formal court claim

Survey findings II• A few were simply unaware of the issues; one said, ‘I am also

ignorant of privacy law, so again it does not inhibit me. Generally I am not dealing with private matters anyway’

• Some knew about privacy law, but it had not arisen as an issue, with a number of respondents remarking that they had not experienced this issue, nor were they interested in covering such stories

• For one respondent, the impact of privacy was ‘not technically because of the law but because of a moral sense of what’s right. That sort of story isn’t something I’d be interested in feeding’

• A few concerns about data protection were mentioned without prompt

Example comments from surveys• ‘Libel certainly does [deter] – for the obvious reasons of fear and ignorance

of the law (plus generally the lack of the kind of journalistic work that would be the defence against a libel claim – either substantial or Reynolds). Privacy not yet, since most people aren’t aware of the development of the law here’ (Journalist - paid, staff position at national news publication, 20 years’ experience)…

• ‘…the most complaints I get regarding online stories is around spent convictions’ (Journalist - paid, staff position at regional print and online publication, 23 years’ experience)

• ‘If someone is rich they can bully editors and journalists. It was always the same, but privacy law has given them a new weapon, and it’s a very uncertain one as the law is constantly developing’ (Journalist - paid, freelance for national print/online publication/s, 20 years’ experience)

Interviews with media law specialists

• One in-house lawyer described how ‘the new trend is to complain about privacy’, but then added that the publication would get more defamation complaints despite the current climate …

• Even at a publication where privacy accounted for a significant proportion of its pre-publication workload ‘in many guises’, the lawyer suggested that most post-publication complaints ‘curiously enough’ were not privacy complaints

• Privacy was generally interpreted in relation to misuse of private information and breach of confidence, with little to no mention of data protection law probably because of the journalistic exemption under S32 of the Data Protection Act 1998

There was an inconsistency between a. the view held by some interviewees that privacy is a growing concern and b. the fact that privacy did not seem to lead to more actions or complaints than defamation. Clearly, for some lawyers, privacy is [in 2012/13] a more troubling and difficult issue because of its ambiguities in law and practice, although not necessarily the legal issue that gives rise to the most actions … yet …

2013 onwards…

Developments in privacy-related law, including data protection; media reports mention ‘chilling effect’ of data protection law

• ‘Right to be forgotten’ (or de-listed) developed in CJEU case C-131/12 Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González

• Misuse of private information further established as a specific tort in Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311

• Data protection and journalism addressed in Steinmetz and others v Global Witness Limited

UK-specific data protection policyLeveson (November 2012):• Recommended amendments to S32 exemption of DPA 1998• Recommended commencement of custodial sentences for S55 DPA 1998

breaches (and enhanced defence for public interest journalism); did not give much credence to anticipated ‘chilling effect’ arising from such a measure

• Recommended ICO should ‘prepare and issue comprehensive good practice guidelines and advice on appropriate principles and standards to be observed by the press in the processing of personal data’

Post-Leveson (2013 - present): • Government promised consultation on data protection and journalism

after the Leveson recommendations – anyone seen it? • ICO has published guidance for media though not a Code of Practice, as it

suggested at one point

Wider data protection landscape

• Forthcoming European General Data Protection Regulation and any changes to domestic law – what will new measures mean for journalism organisations?

• Dealing with right to de-list and media organisations’ interaction with search engines post Google Spain

• Question of flexibility and scope of DPA 1998 Section 32 exemption - with or without Leveson recommended reforms

• Increasing expectation for media organisations to effectively manage data protection issues at processing and publication stage, as indicated in ICO media guidance

Perceptions of data protection creep…

‘…a potential new front in media law’ – the Economist, March 2014

Where next in the UK?There is only explicit mention of data protection in two manifestos (Lib Dem/Green), and only one of these specifically deals with journalism and data protection (Lib Dem)

Liberal Democrat manifesto

• ‘Introduce, after consultation on the detail, the changes to the 1998 Data Protection Act recommended by Lord Justice Leveson to provide a fairer balance between personal privacy and the requirements of journalism, ensuring that the position of investigative journalists is safeguarded’ [p.110]

• ‘Give increased powers and resources for the Information Commissioner and introduce custodial sentences for egregious breaches of the Data Protection Act’ [p. 115]

• ‘Retain access to recoverable success fees and insurance premiums … for both claimant and defendant in publication and data protection claims, except where one party is significantly better resourced than the other’ [p. 124]

See: http://bit.ly/infolawmanifesto

Observations so far

• Data protection law and policy is becoming more relevant to news organisations and journalists, even though Google Spain judgment focused on the role of search engines

• Growing awareness by journalists and media lawyers, but thus far there has been a relatively limited impact on publication activity

• Like defamation, a lot of activity will be under the surface. It will be very tricky to research but it should be attempted…

Emerging research questions

In light of data protection developments discussed, • Will news organisations increasingly encounter data

protection related complaints? What would be the impact on publication activity?

• Will news organisations increasingly prioritise data protection and other privacy-related law as a key area of legal concern?

• What are the implications for the wider public interest and receipt of information (as currently protected under Article 10 of ECHR)?

• What are the implications for subjects of journalism, including potential claimants and complainants?

Q: Is data protection the new defamation?

A: Not yet, no! But it is becoming (or should be) an area of increasing concern for news organisations and journalists, which will need careful scrutiny and further research, by scholars, lawyers, journalists and law and policy makers

Further reading/contact• Townend, J. (2014). Online chilling effects in England and Wales.

Internet Policy Review,[online] 3(2). Available at: http://policyreview.info/articles/analysis/online-chilling-effects-england-and-wales [Accessed: 20 Apr. 2015]

• Barnett, S. and Townend, J., 2014. ‘And What Good Came of it at Last?’ Press–Politician Relations Post-Leveson. The Political Quarterly, 85(2), pp.159–169

• Townend, J., 2013. Closed Data: Defamation and Privacy Disputes in England and Wales. Journal of Media Law, 5(1), pp.31–44

Judith Townend Centre for Law and Information Policy Institute of Advanced Legal Studies @jtownend / judith.townend@sas.ac.ukhttp://bit.ly/infolawcentre