Ensuring new rules on data still allow for media investigation

Comment John Mclellan

While ex- First Minister Alex Salmond counts the roubles from his first Russia Today outing, the attention of real journalists is turning to a more immediate homegrown threat to British reporting, the Data Protection Bill.

As framed, the new legislation going through the House of Lords could transform the UK Information Commissioner from a guardian against the misuse of con- fidential information into a state censor. The new statute is designed to bring the 1998 Data Protection Act up to date, and also to incorporate the measures included in the EU’S general data protection regulations into British law ahead of Brexit. It will require news organisations not just to seek permission from the Information Commissioner in advance of publicity, but before using surveillance techniques to gather information. In effect it gives the commissioner judicial power to prevent publication on the basis that the public interest does not outweigh the right to personal or commercial confidentiality.

Under this system, the Panama Papers might never have seen the light of day because the commissioner could rule that as no crime was being committed there was no reason to expose individuals to public anger because of tax avoidance schemes. But failure to uphold individuals’ expectation of confidentiality could leave the commissioner open to legal action.

Similarly, the abuses of the expenses system at Westminster could have been ruled offside not just because it was personal information but because the information had technically been obtained illegally.

But such was the strength of the public interest argument in these cases that there was never much chance of a successful legal action against the publishers without making the damage even worse. Indeed many exposes are shocking for the reason that what is going on is legal.

The commissioner informally recognises there are circumstances in which media investigation is incompatible with data protection rules but this is not included in the new bill. Nor does it spell out the pub - lic interest in freedom of expression as does the 1998 Act, but both points are covered in a series of amendments tabled by Conservative peer Lord Black.

However, a Labour and Lib Dem amendment is a ruse to freeze out the Editors’ Code of Practice followed by most publishers and introduce state- sponsored press control by the back door. Former Dean of the Faculty of Advocates Lord Keen told the Lords that “these provisions are about protections that journalists should be able to legitimately rely on… vital protections that give journalists the ability to effectively hold those in power to account.” Precisely. ● John Mclellan is director of the Scottish Newspaper Society and a City of Edinburgh Conservative councillor