Quirinius’ Census or Clegg’s Individual Electoral Registration

Voter registration may not be the most exciting of subjects, but it has a certain topicality, as we remember a child born of parents travelling a long distance to register, albeit for a census.

An answer from Nick Clegg in the House of Commons on 20 December 2012, during questions to the Deputy Prime Minister, suggests that the Liberal Democrats are not giving much ground on the introduction of individual electoral registration (IER), which was included as a commitment in the Coalition Agreement. This is despite growing criticism that IER will not fix the fall in registered voters, with the Electoral Commission reporting on 14 December 2011 that 6 million voters (or 17.7% of those ordinarily eligible to vote, estimated in April 2011), had disappeared off the Electoral Roll (click here for the report).

I agree with the critics who suggest that the Government’s proposals for IER will not address the problem of missing voters, and that consideration should be given to a legal obligation to register (but see below on reservations). No such requirement exists in the present Representation of the Peoples Act 1983, or is proposed by the Liberal Democrats (as confirmed by Nick Clegg).

I suspect that part of the reluctance citizens have to electoral registration is the secondary use permitted by the 1983 Act (and the Representation of the Peoples (England and Wales) Regulations 2001, for England and Wales), subject to voters’ opt outs, for the electoral roll. Perhaps if the electoral register were maintained upon the basis that its sole use was for electoral registration, subject to voters’ opt in for secondary uses, more would be willing to register. It would certainly place the onus on public authorities to explain and justify their secondary uses.

There is also the question of drawing the boundaries of constituencies by reference to the electorate, being the eligible voters whose names appear on the electoral register (under Parliamentary Constituencies Act 1986). If the number of registered voters continues to fall, it will also have a marked effect on the shape of parliamentary constituencies. It is easy to see how claims of gerrymandering therefore surround the Government’s proposals. This is before consideration is made of the use to which the electoral register is put by local and national government for resource and other planning purposes.

If, as many suspect, it will be the marginalised that will drop off the electoral roll with IER, will their needs be recognised in any social security and associated services planning? Or, to round off the Christmas theme, will the lack of social housing planning mean more displaced families end up in stables?

Saturday Hassan and Human Rights

The case of Saturday Hassan, widely reported in the Daily Telegraph, Daily Main and on BBC Radio 4 Today on 21 December 2012, highlights the confusion that still exists about the interaction between the Data Protection Act 1998, the Freedom of Information Act 2000 and, indirectly, the Human Rights Act 1998.

Saturday Hussan is serving a life sentence for the murder of Darren Deslandes – he was shot dead on New Year’s Eve 2009. Darren’s parents, Wintworth and Lurline Deslandes, want the Home Office to disclose Hussan’s immigration status, so that it can be confirmed that if he is an illegal immigrant or foreign national, he will be deported when he is finally released from jail. It is reported that the Home Office have refused the request, on the grounds of the protection of Hussan’s right to privacy (under Article 8 of the European Convention of Human Rights, incorporated into UK law by the Human Rights Act 1998).

This is an inadequate reason, without further explanation from the Home Office. It may also be wrong at law, but the relevant law is complex. I set out below one way in which the information could be lawfully disclosed, but there are others that would need careful analysis of all the relevant facts.

There are various offences related to immigration under, for example, the Immigration Act 1971. It can therefore be legitimately argued that information concerning Hussan’s immigration status is sensitive personal data under the Data Protection Act 1998, for which higher level of safeguards apply. However, sensitive personal data can be processed for a number of lawful reasons, including for the administration of justice or for the exercise of any functions of a Minister of the Crown or government department. Its disclosure, if for these purposes, would therefore not be a breach of the data protection principles, and so would be permitted under the Freedom of Information Act 2000.

What is covered by the “administration of justice” purposes in the Data Protection Act 1998 has not been judicially determined, but in other cases that have reached the European Court of Human Rights (ECHR) in Strasburg, it has been made clear that the ECHR would consider whether any interference to a citizen’s Article 8 right to privacy was justified. In the terms set out in S and Marper v The United Kingdom [2008] ECHR 30562/04 (a case involving retention of DNA records by the police), the ECHR said:

An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001, with further references). (paragraph 101)

It is therefore arguable that the Home Office could decide that the Deslandes and other similar indirect victims of crime do have a pressing social need to know whether they are safe from the perpetrator of the relevant crime reappearing on their doorstep. It certainly is not as simple as saying Hussan’s right to privacy trumps every other consideration.

Bureau of Investigative Journalism v Bell Pottinger: a question of standards II

Sequels are rarely as good as the first book or film, but sometimes it is hard to resist. In my first blog into the Bureau of Investigative Journalism (BIJ) sting on Bell Pottinger (BP), I used the story to show how blogging is largely unregulated, press media is regulated to a limited degree by the Editors’ Code of the PCC and then lastly that broadcast media are subject to the greatest regulation of all under Ofcom’s Broadcasting Code.

To adapt my own opening, you may have thought that experienced public relations professionals would realise that there is no such thing as impartiality in the press, but the press release of Lord Bell of Chime Communications suggests this is not the case.

I’ll follow the format of my last blog, too.

Blogs and websites

Firstly, as I said before, blogs, bloggers and their websites have little restrictions on what they do or say. So in the context of the Chime Communications press release, bloggers can be as underhand, unethical and improper as they like. Their reporting of a matter can be as impartial, not even-handed and deliberately slanted as they want.

Press media

For press media, there is little legislation above what applies to bloggers. When it comes to the increased, self-imposed regulation of the Press Complaints Commission (PCC) and its Editors’ Code, there is not much to add on impartiality. The press only have some duties concerning accuracy. Article 1 of the Code states:

1 Accuracy

i) The press must take care not to publish inaccurate, misleading  or distorted information, including pictures.

ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and – where appropriate – an apology published.

iii) The press, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact.

iv) A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.

The use of subterfuge was addressed in my last blog – I note that Chime Communications have not stated why the public interest defence does not apply to its use by BIJ for the sting. Impartiality or partisanship is the name of the game for the press, which a PR would know, surely?

Broadcast media

Lastly, there is the broadcast media. Here, fairness and impartiality is an issue, with a whole section dealing with fairness (Section 7). So perhaps in a broadcast of the BIJ story, there would have to have been some programme time devoted to a right to reply (see Section 7.11 and 7.12 of the Broadcasting Code), once the use of deception could be justified by the public interest test in the Code to permit the programme to air in the first place.

So given that the BIJ website and The Independent could be quite impartial, what is the Chime Communications press release trying to say? Sorry?

Bureau of Investigative Journalism v Bell Pottinger: a question of standards?

You may have thought that experienced public relations professionals would realise that there is no such thing as a private or “off the record” briefing, but the report last week from the Bureau of Investigative Journalism (BIJ) into the activities and practices of Bell Pottinger (BP) suggests this is not the case.

The BIJ used what is colloquially called a sting by posing as potential clients from a regime with questionable human rights and anti-corruption credentials, to reveal boasts from BP of what it could do in terms of media management and lobbying on behalf of a less desirable client, if that client showed commitment to a reform agenda. The sting included the use of hidden cameras and recording equipment, in what many consider to be tactics close to being entrapment.

The BIJ published its report, including video clips, on its website. The report was picked up by a number of press and broadcast media channels.

The story therefore provides a neat example of the difference in regulation between bloggers/websites, press media and broadcast media. This could not be more topical, as the Leveson Inquiry considers press regulation.

Blogs and websites

Firstly, blogs, bloggers and their websites have little restrictions on what they do or say. Only privacy and libel laws (together with specific legislation such as provisions concerning incitement to racial or religious hatred in the Public Order Act 1986) limit how and what is reported – it is accepted that current libel law as practiced in England and Wales may have a significant chilling effect on free speech, so that this is no trivial “only”. Assuming that there is no libel involved in the BIJ exposé as it merely faithfully reports BP’s own statements, then the question here is the methods used to get those statements. There are no specific laws against the use of surreptitious recording, if the recording does not involve interception of electronic communications within the scope of the Regulation of Investigatory Powers Act 2000 (eg hacking or phone monitoring) or unauthorised access to computers within the scope of prohibitions in the Computer Misuse Act 1990. The Data Protection Act 1998 might have relevance, but then within it is a journalism defence (section 35), which applies when the material processed is intended for any form of publication in the public domain and the publisher reasonably believes the publication is in the public interest. Although it does not say so explicitly, this publication must include blogs and websites.

A person seeking to challenge the publication could complain to the Information Commissioner, who has the power to levy monetary penalties of up to £500,000 for serious breaches of the Data Protection Act 1998, but to date there has not been a case involving a failed section 35 defence. Action in the courts is possible (but expensive), but the level of damages is low – the most publicised case involved Naomi Campbell (Campbell v Mirror Group Newspapers [2002] EWHC 499 (QB), subsequently upheld by the House of Lords [2004] UKHL 22). Although not clearly identified as such, it would seem that her data protection damages amounted to a modest £1,000, out of a total award of £3,500 damages for breach of the Data Protection Act 1998 (damages for distress under section 13) and for breach of confidentiality.

More importantly, for private individuals’ blogs, it is arguable that any processing by them would be within the domestic purposes exemption (section 36), but this does depend upon how the law develops to interpret what are “recreational purposes” within that exemption.

Press media

For press media, there is little legislation above what applies to bloggers. The difference is that there is an increased level of self-imposed regulation, under the Press Complaints Commission (PCC) and its Editors’ Code. Article 10 of the Code states:

10 Clandestine devices and subterfuge
i) The press must not seek to obtain or publish material acquired by using hidden cameras or clandestine listening devices; or by intercepting private or mobile telephone calls, messages or emails; or by the unauthorised removal of documents or photographs; or by accessing digitally-held private information without consent.
ii) Engaging in misrepresentation or subterfuge, including by agents or intermediaries, can generally be justified only in the public interest and then only when the material cannot be obtained by other means.

However, these restrictions can be disregarded in the public interest, if an editor reasonably believed prior to publication that publication or journalistic activity prior to publication was in the public interest. Note that in dealing with any complaint about use of clandestine devices and subterfuge, the PCC can take into account “the extent to which material is already in the public domain, or will become so”. Does this mean that once information obtained by subterfuge is out in the public domain, it is fair game for press media to republish it?

The real question for the Leveson Inquiry is what happens when there has been a breach of the PCC Code. It is widely suggested that the PCC is too ready to find that there is public interest. Even when it finds that there is no public interest to warrant the breach of the Code, it is arguably toothless, so that remedies for the victim are derisory.

Broadcast media

Lastly, what if the BIJ report had been broadcast on the Channel 4 Despatches programme, which appears to take some indirect flack from BP? Channel 4 is subject to the Broadcasting Code, regulated by Ofcom. Section 7 of the Broadcasting Code includes:

Deception, set-ups and ‘wind-up’ calls
7.14 Broadcasters or programme makers should not normally obtain or seek information, audio, pictures or an agreement to contribute through misrepresentation or deception. (Deception includes surreptitious filming or recording.) However:
• it may be warranted to use material obtained through misrepresentation or deception without consent if it is in the public interest and cannot reasonably be obtained by other means;
• where there is no adequate public interest justification, for example some unsolicited wind-up calls or entertainment set-ups, consent should be obtained from the individual and/or organisation concerned before the material is broadcast;
• if the individual and/or organisation is/are not identifiable in the programme then consent for broadcast will not be required;
• material involving celebrities and those in the public eye can be used without consent for broadcast, but it should not be used without a public interest justification if it is likely to result in unjustified public ridicule or personal distress. (Normally, therefore such contributions should be pre-recorded.)

So if a victim of deception complained to Ofcom, would the outcome be as weak as for the PCC?

This is where there is a marked difference between press and broadcast regulation. Whilst the actual regulations may be similar (see the above rules on deception/subterfuge), the penalties for getting it wrong as a broadcaster can be steep. Ofcom can fine up to £250,000 or 5% of a broadcaster’s qualifying annual revenue. The most recent case reported by Ofcom for breach of the fairness rule was a case involving Press TV Limited, who were fined £100,000 on 1 December 2011.