Data Protection Bill [HL] — House of Lords, 2017-11-22
Topic: Civil Rights
Guy Vaughan Black (Conservative, Centre-right): My Lords, in moving Amendment 163A I shall speak also to Amendments 164A, 170B to 170D, 172A to 172C—a number of which the noble Viscount, Lord Colville of Culross, has added his name to—and to the Question whether Clause 165 should stand part. I fear that if noble Lords are still suffering from indigestion as a result of the alphabet soup of amendments we had in Committee last week on this subject, today we have an even more indigestible alphabet banquet The amendments relate to media freedoms. I declare my interest as the executive director of the Telegraph Media Group and draw attention to my other media interests. As with the previous group of amendments we discussed in Committee, the implications in this area go well beyond the press and impact on online and broadcast media, along with a wide range of literary and artistic interests. They are supported by the Media Lawyers Association, the News Media Association and the Society of Editors. In the past few days, noble Lords may also have received very important representation, specifically on Clause 164, from the BBC, ITV and other broadcasters I highlight two points in particular to give context to this group of amendments. First, Clause 164(3)(c) gives a statutory regulator—the Information Commissioner —powers to interfere with investigations and reporting, pre-publication. Secondly, unless the defences in the Bill are augmented, Clause 161 means that a reporter vindicated as acting lawfully in the eyes of the civil courts could be convicted on the same grounds in the criminal courts. That has widespread ramifications. The exemption for special purposes covers not only the journalism of the BBC, Channel 4, ITN and all newspapers, national and local, but the deadly serious journalistic work of NGOs and campaigning organisations such as Global Witness The GDPR demands freedom of expression protections for academic, literary and artistic purposes as well. That means that the playwright, producer, professor, provocative cartoonist, artist, author, diarist and publisher of any book whose work at any stage uses information about living individuals, falling within the broad application of the Bill, is as vulnerable to these parts as the media. That is why the provisions deserve the most careful scrutiny and attention. Given that these powers bite pre-publication, the mere assertion of a data protection breach will be a marvellously cheap and convenient way for individuals with something to hide to stop any work that may cast them in an unwelcome light in its tracks. Indeed, there is a double jeopardy in the Bill, as under Clause 165, the Information Commissioner is empowered to provide financial support to people wanting to bring action; her written determination would also lift any stay on legal action in respect of pre-publication processing Let me explain, as briefly as I can, how these amendments seek to tackle that mischief. The first two of them relate to penalties. Amendment 163A to Clause 143 is intended to prevent inconvenient truths being all too conveniently covered up. Currently, the original publisher of an article de-listed from Google or other search engines, following the complainant’s appeal to the Information Commissioner to have it taken down by the content aggregator, neither knows about this virtual disappearance nor has any opportunity to put the case on the accuracy or continued relevance of the article to the ICO. This amendment introduces the option of the ICO consulting with the originating publisher prior to making a determination and then publicising the determinations made Amendment 164A to Clause 148 addresses the overall proportionality of penalties for infringements of the Act. As noble Lords will know, a company in breach must pay the appropriate penalty as set out under the Act. However, there is again the risk of double jeopardy as far as the media are concerned, because the standard contractual terms of content aggregators such as Google require media organisations to indemnify them in respect of journalistic material that they then disseminate to their users. Due to their huge global turnovers, such aggregators could be liable for far greater fines under the GDPR, dwarfing those that any media organisation would be liable for on its own transgression. That could result in media organisations facing financial ruin because of the indemnity they are bound to give. This amendment simply proposes that, when any fine is imposed, consideration should be given to indemnities, compensation and other penalties for which organisations are liable, if a breach arises.