Data Protection Bill [HL] — House of Lords, 2017-11-06
Topic: Civil Rights
Robert Stevenson (Labour, Centre-left): My Lords, at Second Reading I touched on the question of whether the Bill might be used as a vehicle for rehearsing some of the arguments that we have heard in your Lordships’ House about the issues raised by Sir Brian Leveson in his report. I opined at the time, and am still of the belief, that this would not be the right place to put forward those amendments again, because I would favour an initiative from the other side of the House which tried to build on some of the work that was done in the run-up to the work that was done after the Leveson report was first published, which saw all party groups coming together to try and find a way forward. It seemed that we were beginning to get ourselves into a cul-de-sac on many of these issues. Although there were strong passions and strong beliefs, and good intellectual and other reasons for taking forward some of these issues, the times had changed and the climate had moved on. It was therefore important to try and think again about what would happen However, I also said that maybe others would take a different view of that and come forward with amendments on these and related issues. I expressed the view that, if they did, Her Majesty’s Loyal Opposition would look at them on their merits and respond to them as and when they came up. This explains why we have not signed up to some of the amendments that are before your Lordships’ House today I also said that our main concern going into Committee would be to make sure that the arrangements under which we currently operated, which were largely set out in the Data Protection Act 1998, were continued. It was very important that all concerned had confidence that the transposition between 1998 and today, and going forward to 25 May 2018, was adequate and sufficient, in terms of how we approached them in relation to that Bill. I am therefore introducing Amendment 42, which is largely a probing amendment aimed at getting Ministers on the record as to whether or not they feel that the transposition has been made fairly and effectively. To the extent that there is an addition to the existing law, as I understand that to be the case, it is in response to a particular aspect of the current regime which does not seem to work well in practice. The Information Commissioner’s Office has made it clear that it feels that it could do with an additional power, which I think is provided for in the Bill, to assist with the ability to reimburse those who have been affected by actions arising from a complaint they have taken forward in relation to the press. If that is the case, I would be happy to have that confirmed. That is the reason for Amendment 42, and I look forward to hearing from Ministers how they respond to that In pursuit of a perfectly normal and natural wish to scrutinise the Bill as it is before us, we have two other amendments in this group. Amendment 87B was offered to us by the NUJ, and is on a question which comes up a lot when talking about intellectual property issues relating to photography—not that this is actually about that, but journalism has a common-sense meaning which is often used in language other than that of Bills to reflect all aspects of journalism, including photojournalism. But of course it is not the totality of what photographers do, so this amendment is an attempt to get on the record what Ministers believe to be the sense on page 136, in Part 5, where paragraph 24(2) states that GDPR provisions do not apply, "to personal data that is being processed only for the special purposes to the extent that … the personal data is being processed with a view to the publication by a person of journalistic, academic, artistic or literary material" Given the absence of the term "photography" or "photographer", I have a slightly rhetorical question, but one to which I am looking for an answer. Can I assume that the sense of that paragraph is that this would catch photographers If that is the case, since photography is often done in a way that would not always result in publication, could we have clarity about the situation if the photographers were to rely on this provision in relation to material? Say, for instance, they were taking a number of photographs of a demonstration, some of which would be used but a lot would not be, and then it was felt that there was some other purpose that those photographs could be used for—that was an example given to us by the NUJ. It was concerned that the photographer should not be discriminated against, in the sense that the work of building up a personal archive of photographs taken on the job that did not result in specific publication might not necessarily fit particularly well with that. This is just a probing amendment to see what the response to that is The other amendment in our name in this group is Amendment 87E, relating to an issue that has been raised by others in this group. There is what I think is meant to be a transposition from the Data Protection Act 1998 to refer to the question of whether or not the public interest is engaged, and various rules and regulations around that. The notion behind our amendment is that we are not sure it is helpful nowadays for the legislation to refer in specifics to a list of codes and practices, particularly because one of those—I reference paragraph 24(5)(c)—is not correctly described. I think others will speak to this as well. Obviously there is a code of practice that editors of major newspapers have contributed to and which works reasonably well in practice, but the danger about that as an example is that it cuts out a lot of other codes of practice that could easily be mentioned there. Having them there does not seem to advance the argument, which is that the controller must have regard to appropriate codes of practice or guidelines that exist. In the event that any question is raised by the Information Commissioner or others, it is more appropriate for that to be left more general than specific. With that, I look forward to the responses. I beg to move.