Many questions are being asked about the fourth estate in the aftermath of the News of the World hacking scandal. However, few seem to considering the potential that reactionary measures adopted as a result of widespread illegality by journalists may make genuine investigative journalism that is conducted in the public interest impossible. In particular, the Information Commissioner’s 2006 report into the illegal sale of personal data, What Price Privacy?, is getting the attention it should have received 5 years ago. However, the reports of the number of incidences of sale of personal data to journalists fails to note that some of this activity could have been lawful.
There is already an exemption from the scope and reach of the Data Protection Act 1998 to cover genuine journalism. Section 32(1) of the Act states:
(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.
“Special purposes” means any one or more of for purposes of journalism, artistic purposes, and literary purposes (Section 3 of the Act).
The main criminal offence being committed by phone hackers under the Data Protection Act 1998 is the unlawful obtaining of individuals’ phone numbers and PINs for voice mail boxes – the actual interception of communications is either an offence under the Regulation of Investigatory Powers Act 2000 or the Computer Misuse Act 1990. In particular, section 55 of the Act states:
55 Unlawful obtaining etc. of personal data.
(1) A person must not knowingly or recklessly, without the consent of the data controller—
(a) obtain or disclose personal data or the information contained in personal data, or
(b) procure the disclosure to another person of the information contained in personal data.
(2) Subsection (1) does not apply to a person who shows—
(a) that the obtaining, disclosing or procuring—
(i) was necessary for the purpose of preventing or detecting crime, or
(ii) was required or authorised by or under any enactment, by any rule of law or by the order of a court,
(b) that he acted in the reasonable belief that he had in law the right to obtain or disclose the data or information or, as the case may be, to procure the disclosure of the information to the other person,
(c) that he acted in the reasonable belief that he would have had the consent of the data controller if the data controller had known of the obtaining, disclosing or procuring and the circumstances of it, or
(d) that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest.
(3) A person who contravenes subsection (1) is guilty of an offence.
(4) A person who sells personal data is guilty of an offence if he has obtained the data in contravention of subsection (1).
(5) A person who offers to sell personal data is guilty of an offence if—
(a) he has obtained the data in contravention of subsection (1), or
(b) he subsequently obtains the data in contravention of that subsection.
(6) For the purposes of subsection (5), an advertisement indicating that personal data are or may be for sale is an offer to sell the data.
(7) Section 1(2) does not apply for the purposes of this section; and for the purposes of subsections (4) to (6), “personal data” includes information extracted from personal data.
(8) References in this section to personal data do not include references to personal data which by virtue of section 28 or 33A are exempt from this section.
It is therefore clear that there is a public interest defence to the section 55 criminal offence, at section 55(2)(d), that would enable the techniques being used by News of the World and others to continue to be used for legitimate investigative journalism.
When it comes to interception of communications, which is an offence under section 1 of the Regulation of Investigatory Powers Act 2000, there are a complex set of exemptions both in the Act itself (at section 3) and under the Telecommunications (Interception)(Lawful Business Practices) Regulations 2000. I therefore have some sympathy with investigative journalists in that there does not appear to be a simple public interest defence open to them to be able to intercept communications lawfully. Similarly, if accessing voice mail boxes were considered to be computer misuse under the Computer Misuse Act 1990, there is no public interest defence under the 1990 Act.
I therefore consider that in any consideration of greater regulation of the press, consideration should be given to providing for public interest defences for the purposes of journalism in the 1990 and 2000 Acts. I also agree that the maximum penalty of £5,000 for a breach of section 55 is lamentable. It was in 2006, it clearly is in 2011.