Campaigning journalism is still journalism: Global Witness and s.32 DPA

December 23rd, 2014 by Peter Lockley

In an important development in the on-going saga of Steinmetz and others v Global Witness, the ICO has decided that the campaigning NGO is able to rely on the ‘journalism’ exemption under s.32 of the Data Protection Act 1998 (DPA).

The decision has major implications for journalists working both within and outside the mainstream media, not least because it makes clear that those engaged in campaigning journalism can potentially pray in aid the s. 32 exemption. Importantly, it also confirms that the Article 10 right to freedom of expression remains a significant right within the data protection field, notwithstanding recent developments, including Leveson and Google Spain, which have tended to place privacy rights centre-stage (Panopticons passim, maybe even ad nauseam).

Loyal readers will be familiar with the background to the Global Witness case, for which see original post by Jason Coppel QC.

In brief: Global Witness is an NGO which reports and campaigns on natural resource related corruption around the world. Global Witness is one of a number of organisations which has been reporting on allegations that a particular company, BSG Resources Ltd (“BSGR”), secured a major mining concession in Guinea through corrupt means. A number of individuals who are all in some way connected with BSGR (including Benny Steinmetz, reported to be its founder) brought claims against Global Witness under the DPA. The claims included a claim under s. 7 (failure to respond to subject access requests); s. 10 (obligation to cease processing in response to a damage and distress notification); s. 13 (claim for compensation for breach of the data protection principles) and s. 14 (claim for rectification of inaccurate data). Significantly, Mr Steinmetz alleged, amongst other things, that because he was personally so closely connected to BSGR, any information about BSGR amounted to his own personal data. If successful, the claims would have the effect of preventing Global Witness from investigating or publishing further reports on the Guinea corruption controversy.

Global Witness’s primary line of defence in the High Court proceedings was that all of the claims were misconceived because it was protected by the ‘journalism’ exemption provided for by s. 32 of the DPA. After a procedural spat in March (Panopticon report here), Global Witness’s application for a stay of the claims under s. 32(4) DPA was allowed by the High Court. The matter was then passed to the ICO for a possible determination under s.45 DPA. (In summary, such a determination will be made if the ICO concludes, against the data controller, either: (a) that the data controller is not processing the personal data only for the purposes of journalism or (b) it is not processing the data with a view to future publication of journalistic material).

In fact, the ICO declined to make a determination under s. 45. Moreover, he decided that, with respect to the subject access requests made by the claimants, Global Witness had been entitled to rely on the exemption afforded under s. 32. With respect to the latter conclusion, the ICO held that there were four questions which fell to be considered:

(1) whether the personal data is processed only for journalism, art or literature (s.32(1))

When dealing with this question, the ICO referred to his recent guidance Data Protection and journalism: a guide for the media, in which he accepted that non-media organisations could rely on the s.32 exemption, provided that the specific data in question were processed solely with a view to publishing information, opinions or ideas for general public consumption (p.30). He went on to conclude that this requirement could be met even where the publication is part of a wider campaign, provided that the data is not also used directly for the organisation’s other purposes (e.g. research or selling services). The ICO was satisfied that this condition was met for the data in question.

(2) whether that processing is taking place with a view to publication of some material (s.32(1)(a))

It is apparent from the decision letter that Global Witness was able to point to articles it had already published on the Simandou controversy, and since the controversy was on-going, to show it intended to publish more such articles. The ICO was satisfied that, in the circumstances, this second question should be answered in the affirmative.

(3) whether the data controller has a reasonable belief that publication is in the public interest (s.32(1)(b))

The ICO emphasised that the question he had to ask himself was not whether, judged objectively, the publication was in the public interest, but rather whether Global Witness reasonably believed publication was in the public interest. In the circumstances of this case – small NGO shines a spotlight on activities of large multinational in one of the world’s poorest countries amid allegations of serious corruption – he readily accepted that Global Witness held such a belief, particularly as the data related to the data subjects’ professional activities, for which they in any event had a lower expectation of privacy than in relation to their private lives.

(4) whether the data controller has a reasonable belief that compliance is incompatible with journalism. (s.32(1)(c))

Again, the focus here was on Global Witness’ reasonable beliefs. The ICO accepted that Global Witness had reasonable concerns that complying with the subject access requests which had been made by the claimants would prejudice its journalistic activity in two ways:, first, by giving the data subjects advance warning of the nature and direction of Global Witness’ investigations, which could be used to thwarting effect and, second, by creating an environment in which the organisation’s sources might lose confidence in Global Witness’ ability to protect their identities.

The decision will no doubt substantially reassure campaigning and investigative journalists everywhere. Unsurprisingly, it has been widely reported in the media (see e.g. Guardian article, Times article and FT article here). Notably, the FT reports that the claimants are asserting that they intend to challenge the decision. We will have to wait until the New Year to discover whether these assertions translate into action and, if they do translate into action, what form that action will take.

Anya Proops of 11KBW acts for Global Witness.

Peter Lockley

 

PROTECTING CONFIDENTIAL INFORMATION UNDER FOIA – NEW FTT DECISION

April 28th, 2012 by Anya Proops QC

The FTT has recently handed down a decision which considers in some detail the operation of s. 41(2) FOIA (exemption in respect of confidential information): Moss v IC & Home Office (EA/2011/0081). In Moss, a request was made for disclosure of a particular report prepared by IBM and provided to the Home Office. The report was compiled in circumstances where IBM was seeking to tender for provision to the Identity and Passport Service (IPS) of a biometric recognition system and was, as part of this process, considering which biometric software provider to partner with. The report sought to test the suitability of various biometric software providers and their products with a view to establishing which provider should be treated as the preferred provider in the context of the tender. IBM decided to provide the report to the IPS in order to build confidence in the solution that it was offering to the IPS as part of the tender process. The report was provided to the IPS in circumstances where there were various agreements in place which, whilst recognising the IPS’ obligations under FOIA, effectively obliged the IPS to treat the information it received from tenderers as confidential. Mr Moss submitted a request to the Home Office for disclosure of the report. The Home Office refused to disclose the report, relying on a number of exemptions including s. 41(2). The Commissioner concluded that the refusal was lawful on an application of s. 41(2). On appeal to the tribunal, Mr Moss sought to argue that the Commissioner had misapplied s. 41(2). In a lengthy judgment, a majority of the tribunal upheld the Commissioner’s decision. However, the minority held that the report ought to have been disclosed, subject to redactions to protect in particular the commercial interests of the software providers. The majority judgment is notable not least because of its emphatic approval of the test for breach of confidence adopted by Megarry J in Coco v Clark [1968] FSR 415. Other aspects of the majority judgment which are worthy of note include the majority’s conclusion that the public interest defence will not be available in respect of a potential claim for breach of confidence merely because the public has an interest in seeing the information in question (see in particular paras. 84 et seq).

Interestingly, both the majority and the minority touched on issues relating to the application of Article 10 in their respective judgments. The majority alluded to Article 10 in the context of highlighting the ways in which the Article 10 right to freedom of expression may bolster a prospective public interest defence against a claim for breach of confidence. (The existence of such a defence is relevant to the question whether, for the purposes of s. 41(2), disclosure of confidential information would give rise to an ‘actionable breach of confidence’). The minority, by way of contrast, alluded to the Article 10 right to receive information, which had recently been considered in the Sugar and Kennedy cases (in the Supreme Court and Court of Appeal respectively). The minority queried whether and to what extent the recent jurisprudence on the Article 10 right to receive information ought to be shaping the analysis of the public interest defence under s. 41(2). See further my earlier post on the Kennedy judgment here.

Anya Proops

 

SOME REFLECTIONS ON SUPER-INJUNCTIONS AND PARALLEL UNIVERSES

May 23rd, 2011 by Robin Hopkins

The Committee on Super-injunctions, established in April 2010 in the wake of the Trafigura and Terry cases, was made up largely of judges and practising lawyers, but also included legal representatives from the Guardian and Trinity Mirror. Nonetheless, the media have not received its report, “Super-Injunctions, Anonymised Injunctions and Open Justice” warmly. The Independent has commented on the “absurdity” of the current situation, while the Daily Mail called the report “a chilling exercise in judicial activism, self-delusion and – most worrying – a constitutional attack on Parliamentary sovereignty and free speech”.

Tensions have escalated since the publication of the report on Friday, and reached a head today. Footballer “CTB” (as his injunction order refers to him) has obtained a disclosure order requiring Twitter (based in California) to divulge the names of the “persons unknown” (resident, of course, in jurisdictions unknown) who have referred to his identity in their tweets. Scotland’s Sunday Herald flouted the order of the High Court of England and Wales in publishing the player’s name. This has apparently prompted calls for the Attorney-General to take action against the journalist responsible, a course of action which in the view of SNP leader Alex Salmond would be unwise. Mr Salmond neatly articulated the jurisdictional (and devolutionary) difficulties of this issue, by arguing on this morning’s Today programme that anyone wishing an injunction to be effective in Scotland should apply to a court in Scotland. Fred Goodwin was “outed” in the Lords last week, and John Hemming MP has moments ago outed CTB himself.

And so it goes on. It has been announced in the past few minutes that a joint parliamentary committee will be established to consider privacy law reform. Against this backdrop, I set out a few (rapidly evolving) thoughts on four of the thorny issues raised by the report, the accompanying press conference given by Lords Neuberger and Judge and the general aftermath. On each of these four issues, my sense at the moment is that matters may develop in favour of openness rather than privacy – despite the failure this afternoon to overturn CTB’s injunction.

First though, a synopsis of the report’s thrust and limited terms of reference.

The report: procedure, not substance

As regards its subject matter, the committee distinguished between super-injunctions (where the order states that neither the named applicant’s private information nor the existence of the order can be published), anonymous injunctions (the order does not name the applicant or parties involved) and “so-called hyper-injunctions” (the order prohibits individuals from discussing matters with third parties).

It sees no legal barrier to any of these types of injunction taking effect. It thinks all such injunctions are very rare, but recommends that statistics be maintained on the granting of injunctions so that their prevalence can be monitored.

The report proposes a tidying up of the procedure for obtaining these injunctions. The committee gives a firm “no” to the use of specialist judges to hear these kinds of application. It says that Practice Guidance should be issued, which should include model orders and the process for expediting appeals against the granting of such orders.

Overall, however, the report is not about substantive law reform: that is a matter for parliament. In fact, it is now an urgent matter for parliament. In my view, some of the key issues to be considered are as follows.

Issue 1: media presence at injunction hearings

Parliament’s committee will, like the reporting committee, take Article 10 ECHR very seriously (for a very recent example of Article 10 affecting the interpretation of FOIA, see my post here). The report observes that “it will be a very rare case where advance notice of such an application to media organisations, which are likely to be affected by any order, can be justifiably withheld”. It proposes that the press be allowed to attend application hearings – bound of course by confidentiality agreements and non-disclosure orders. This would allow the media to be properly informed of the matters on which they may not report, and would also equip them to appeal against orders where they deem this appropriate.

This is doubtless a step in the right direction in terms of Article 10. As the committee recognises, however, there are real practical difficulties with the proposal. First, interim injunction hearings are often so rushed that there is no real prospect of a blanket invitation to the media. Secondly, how does one determine who the “media” are who are allowed to attend such hearings? As Lord Judge put it “we know who you [the media attending the release of the report] are, we’re familiar with you, but someone comes along and says, “I’m from the Argyll and Orkney Express” but how do we know? Do we really expect to have cards issued? Can you imagine the bureaucracy?”.

Part of the problem is this: either anyone with an interest in reporting the matter is allowed to attend, or only the “establishment” (this is my term, but seems the sentiment reflected in Lord Judge’s rhetorical question) is allowed, even though the aim is to make everyone subject to the order, establishment or not. The former option exponentially increases the risk of leaks and disclosures on Twitter. The latter option draws distinctions which are impracticable and problematic in terms of Article 10 and fairness in a broader sense. My view is that the former option will prevail, and that we will see a very broad net of media attendees at future super-injunction hearings. This in itself might serve as a deterrent to making such applications in the first place.

Issue 2: Twitter and other “modern technology”

There has been a flexing of judicial muscle as regards Twitter. Though he described “modern technology” as “totally out of control”, Lord Judge took hope from efforts to combat online child pornography. He said this:

“Are were really going to say that someone who has a true claim of privacy, perfect well made, which the media and newspapers can’t report, has to be at the mercy of someone using modern technology? At the moment that may seem to be the case but I am not giving up on the possibility that people who in effect peddle lies about others by using modern technology may one day be brought under control, maybe through damages – very substantial damages – maybe even through injunctions to prevent the peddling of lies”.

The language of “peddling lies” is curious. That is a concept belonging to libel law, rather than privacy. Those seeking super-injunctions tend not to say the underlying material consists of lies, but simply that it is private. The damage lies not in the falsity of the material, but in the fact that people talk about it.

This distinction is important in at least two respects. First, if an applicant wants to prevent people talking about the matter, but many people have already done so (for example, on Twitter), then his or her case for an ongoing injunction is weakened; it begins to look more a matter for damages than for injunctive relief.

Secondly, foreign jurisdictions may be even less cooperative about orders from England and Wales protecting private (but often true) material than they often are about similar orders concerning libel (see for example the United States’ Speech Act of 2010). Countries co-operate against copyright infringement and child pornography because they think it important to do so in a civilised society. They may be less inclined to think that about, say, Andrew Marr’s sex life. In other words, there is a good chance that legal action, whether for injunctive relief or damages, taken in England and Wales against foreign reporters may simply be impotent.

Contrast this likely impotence with measures for after illegal file-sharers through their internet service providers, proposed under the UK’s Digital Economy Act 2010 (on which, see my discussion here in advance of BT’s judicial review of that Act): unlike Twitter, ISPs often have a commercial footing in the UK which they are concerned to protect; international (including EU) legal protection is far more advanced than for copyright than for privacy; even under the Digital Economy Act’s proposal, infringing users are to be given a number of warnings before their details are handed over to those seeking damages, unlike the old Norwich Pharmacal model being utilised in the footballer’s action against Twitter.

Issue 3: granting and maintaining super-injunctions

The report emphasises that super-injunctions are not to be permanent, but should be granted only for very short periods of time. If anyone notices a super-injunction being granted with no return date, they should complain about it, as was done in the Zac Goldsmith/Jemima Kahn case. So far so good: allowing the media to be present for application hearings would help on this front, as would minimising the time between the interim injunction and the return date.

As regards the grounds on which a super-injunction should be granted, the report’s mood music suggests that some may have been granted too readily. It stresses that “in seeking to minimise derogations from the principle of open justice, the committee envisaged that super-injunctions will only be granted in very limited circumstances”. Other than to emphasise exceptionality and Article 10, there is probably little to be said (either by the committee or by parliament) in terms of guidance to judges on granting such injunctions – this is, and will remain, largely a case-by-case business.

The thorny issue of the moment, however, is this: if a matter has been very widely disclosed on Twitter and other websites, is it fair to maintain an injunction the effect of which is to prevent the establishment media from reporting it? If, as I suggested above, the damage comes from people knowing about what you have done, hasn’t the horse bolted in such circumstances? If people wish to reject your job application or shun you at parties, they will probably do so regardless of how they learnt about your indiscretions. Part of what seemed to concern David Cameron in his ITV interview this morning is this prejudicial effect on the establishment as compared with “newer” media, which commentators have described over the weekend as existing in “parallel universes”.

Lords Neuberger and Judge both suggested on Friday that, to the extent that there are differential effects on newspapers as compared to Twitter, that difference is justified. To a degree, they are correct: rightly or wrongly, we tend to expect more noble and sophisticated ethics from mature brands of journalism than we do from little-known blogs, and applicants no doubt suffer incremental damage from the public seeing matters reported in print headlines or on major news websites which they would otherwise have had to seek out on Twitter. There must come a point, however, where the media’s interests (including under Article 10) outweigh this combination of incremental harm and ethical expectation. That too is probably a matter for case-by-case determination, but it is something parliament’s joint committee will surely wish to consider. It may well side with the media over the privacy-seeking individual if forced to give guidance on a hypothetical case.

Issue 4: parliamentary privilege and contempt of court

The constitutional stakes are highest in this strand of the current debate.

The committee was very clear that no super-injunction or any other court order could conceivably restrict or prohibit parliamentary debate or proceedings. It also recognised that, in defamation proceedings, the reproduction of extracts from Hansard attracts attaches to, while honest, fair and accurate reporting of parliamentary proceedings attracts qualified privilege. It is unclear, however, whether the same would apply in contempt proceedings. In fact, “the law relating to Contempt of Court when it comes to reporting what is said in Parliament is astonishingly unclear”, as Lord Neuberger put it. The extent to which parliamentary privilege attaches to conversations between an MP and his or her constituents (some of whom may of course be journalists) is also unclear.

Lord Judge, however, explicitly disapproved of members of either house using parliamentary privilege to circumvent super-injunctions:

“But you do need to think, do you not, whether it’s a good idea for our lawmakers, to be in effect to be flouting a court order just because they disagree with the order or for that matter because they disagree with the law of privacy which parliament has created”.

John Hemming MP clearly takes a different view.

Again, there is much of interest in Lord Judge’s remark, such as the reference to parliament having created the law of privacy, and the implicit distinction between parliament flouting a court order and an individual member doing so. It would be very surprising, however, if parliament’s joint committee were to propose a constrained version of parliamentary privilege. If that committee is robust in defence of the houses’ privileges, the door may be opened to future “outings”, such as that of Fred Goodwin or CTB. Mindful of this, the reporting committee proposed a softer form of control than the restriction of parliamentary privilege. It suggested that:

“House authorities should consider the feasibility of a streamlined system for answering sub judice queries from the Speakers’ offices. Such a communication system will require the creation of a secure database containing details of super-injunctions and anonymised injunctions held by Her Majesty’s Courts and Tribunals Service, which could be easily searchable following any query from the House authorities”.

Parliament’s committee may well endorse this as the approach best suited to preserving a balance of respect (as opposed to contempt) between parliament, the courts, the media and individuals fearful of their privacy being overridden on political platforms.

On this issue, as with so much of the UK’s constitution, the answer may turn out to be a tense but workable network of understandings, rather than hard law. Perhaps this would calm matters only temporarily. But it might also provide breathing room for the public to evolve our expectations about privacy and freedom in both establishment and “modern technology” media, without bringing the latter under any undue “control”.

Robin Hopkins

 

OF CONSTRUCTION AND HUMAN RIGHTS: TRIBUNAL TO REVISIT S. 32(2) FOIA

May 19th, 2011 by Robin Hopkins

In Kennedy v IC and Charity Commission [2011] EWCA Civ 367, the Court of Appeal has referred back to the Information Tribunal the issue of whether s.32(2) FOIA should be “read down” (i.e. in favour of requesters) to give effect to Article 10 of the ECHR.

Ward LJ’s judgment begins like this:

“Mr George Galloway attracts attention”.

It goes on to explain that, between 1998 and 2003, Mr Galloway launched and ran the “Mariam Appeal”. This aimed to provide medical assistance in Iraq. It raised funds of nearly £1.5 million. The sources of and uses to which these funds were put generated some controversy. Investigations into the Mariam Appeal by the appellant journalist gave rise to an inquiry by the Charity Commission, which concluded in 2007. Shortly afterwards, the appellant requested information about this inquiry.

The Charity Commission refused, relying on the absolute exemption at s. 32(2) FOIA, which provides as follows (note its punctuation and structure – in particular how the commas and the use of “or” affects the flow and meaning of the section):

 Information held by a public authority is exempt information if it is held only by virtue of being contained in—

(a)any document placed in the custody of a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration, or

(b)any document created by a person conducting an inquiry or arbitration, for the purposes of the inquiry or arbitration.

The Information Commissioner, Tribunal and High Court were broadly in agreement with the Charity Commission’s stance. The issue for the Court of Appeal was whether this exemption subsists only for the duration of the inquiry or whether it continues after the inquiry has concluded. In particular, the “troublesome issue” was whether the phrase “for the purposes of the inquiry or arbitration” relates to and qualifies (i) the reason for placing the document in the custody of the person, or (ii) the reason why the document is being held by the public authority. The latter construction favoured the Appellant’s case, but the Information Tribunal opted for the former construction.

Ward LJ held that the issue was “at least ambiguous if not in favour of the appellant. The grammar certainly does not provide a clear cut answer”. He therefore took a purposive approach. Here a number of factors militated against the construction for which the appellant argued:

  • It would produce a surprising discontinuity with s. 32(1) (the “court records” exemption).
  • It would render otiose s. 63(1) (which nullifies s. 32 once a document reaches the age 30 years).
  • S. 18(3) of the Inquiries Act 2005 could only be construed as amending s. 32(2) – otherwise there would have been no need to pass s. 18(3), which provides that

 “Section 32(2) of the Freedom of Information Act 2000 (c. 36) (certain inquiry records etc exempt from obligations under that Act) does not apply in relation to information contained in documents that, in pursuance of rules under section 41(1)(b) below, have been passed to and are held by a public authority.”

Ward LJ concluded that he could not “extract a clear and certain meaning” of s. 32(2). It was “at least susceptible” to the appellant’s construction, but on the ordinary principles of construction the appeal would have been dismissed.

At a late stage, however (in fact, once the parties had received the draft of the original judgment dismissing the appeal) the appellant contended that – given the finding of ambiguity – s. 32(2) had to be read so as to comply with Article 10 of the ECHR. The Court of Appeal decided that this was an important point, which the present case was ideally suited to answer. On this issue, therefore, the case is being remitted to the Information Tribunal.

Robin Hopkins

 

Media Law and Practice – new book from OUP

October 30th, 2009 by Timothy Pitt-Payne QC

Hot off the press is a new book from OUP on “Media Law and Practice”, edited by David Goldberg, Gavin Sutter, and Ian Walden. 

This is a multi-author book, written by a team of practitioners and academics.  It covers a wide range of media topics, including ownership, regulation, intellectual property, defamation, and commercial communications.       

I contributed a chapter on Information Law:  this discusses data protection, freedom of information, and human rights issues, including articles 8 and 10 of the Convention.  One of the book’s features is that it deals with new forms of communication (including blogging), as well as traditional print or broadcast media.  So I had to address questions such as, how would the “special purposes” defined in the DPA (ie artistic, journalistic and literary purposes) apply to web-based publications?

The impetus for the book comes from the Institute of Computer and Communications Law, based in the Centre for Commercial Law Studies, Queen Mary, University of London.  All three editors are members of the Institute.  It’s a major centre for research and teaching in areas related to information law, including intellectual property, telecoms regulation, computer law, and media law.

The book is available online from OUP’s website.