Data Protection Act a threat to free press
JAMAICA IS rightly proud of its record for press freedom, for which the international watchdog group, Reporters Without Borders, based on its 2019 review, currently ranks the island sixth of 180 countries.
Indeed, when the rankings were announced in April, the foreign minister, Kamina Johnson Smith, preened in the Senate about the “positive recognition the world” had shown Jamaica and called for the Government to be commended for “the work that has been done” to ensure a free press. We won’t question the claim, except, as the Media Association of Jamaica (MAJ) pointed out last week, of the potentially massive threat that now looms over how journalists conduct their work and the chilling effect this may have on press freedom.
A fortnight ago, the Senate approved the Data Protection Act, which had previously been passed by the House. The law establishes standards for which firms, and others, to whom individuals entrust that private information, must protect that data, which, in principle, is a good thing. The bad part is how it applies to the media.
For while Section 36 of the proposed law, as it now stands, purports to exempt information in a journalistic pursuit, if the data controller (journalist) “reasonably believes” that publication of the information is in the public’s interest, then the bar set for determining that standard is extremely high.
DANGER OF BEING HARASSED
Moreover, in the absence of a broad exemption of media institutions from the law, journalists, as the MAJ observed in its statement, could face the peril of a subjective determination by the powerful overseer, the data commissioner, of whether the exemptions they thought they had are applied in the circumstances.
There is, too, the danger of journalists being harassed, under the threat of long jail terms and heavy fines, to reveal their sources and to hand over documents or files, which poses a grave threat to investigative journalistic projects.
And unlike the defamation law, with its time limit within which an aggrieved party can pursue a claim, an individual and/or overzealous information commissioner could pursue a journalist or a media institution long after the event for which the complaint is made. The danger for journalists and journalism is exacerbated by the law’s ability to get at them through the back door by the fact that media entities, deemed to be businesses in possession of personal data, separate from their journalistic endeavours, will be separately required to meet the obligations of the legislation.
As Christopher Barnes, chairman of the MAJ, and chief operating officer of RJRGLEANER Communications Group, of which this newspaper is a member, observed: “What we are left with is legislation which will potentially overreach and levy significant administrative burden and ambiguity on data controllers, large and small.”
The legislators will, no doubt, point to the restraining potential of the proposed oversight committee for the data commission, but their work will largely be after the fact, when the chilling power of the office, most likely, has already been exercised. And that is presuming they share a penchant for an aggressive press.
We have had causes in the past to remind that what is worse than formulating bad policy is implementing it. This is one policy on which the Government should be eager to embrace that advice. Indeed, the governor general should be prevailed upon not to sign the bill into law and for it to be remitted to Parliament for the necessary adjustment.