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

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

Global Witness and the journalism exemption: ICO to have the first go?

Panopticon has previously reported on the novel and important data protection case Steinmetz and Others v Global Witness [2014] EWHC 1186 (Ch). The High Court (Henderson J) has now given a judgment on a procedural point which will set the shape for this litigation.

The broad background to the case has been set out in Jason Coppel QC’s previous post – see here. In a nutshell, 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 recently reported on allegations that a particular company, BSG Resources Ltd (“BSGR”), secured a major mining concession in Guinea through corrupt means. Global Witness is now facing claims brought under the Data Protection Act 1998 by a number of individuals who are all in some way connected with BSGR. The claims include a subject access claim brought under s. 7; a claim under s. 10 requiring Global Witness to cease processing data in connection with the claimants and BSGR; a claim for rectification under s. 14 and a claim for compensation under s. 13.

For its part, Global Witness relies on the ‘journalism’ exemption under s. 32 of the DPA, which applies to “processing… undertaken with a view to the publication by any person of any journalistic, literary or artistic material”. Global Witness says it is exempt from the provisions of the DPA on which the claimants rely.

An unusual feature of the s. 32 exemption is that it provides, at subsections (4) and (5), for a mandatory stay mechanism which is designed in essence to enable the ICO to assume an important adjudicative role in the proceedings (my emphasis):

(4) Where at any time (“the relevant time”) in any proceedings against a data controller under section 7(9), 10(4), 12(8) or 14 or by virtue of section 13 the data controller claims, or it appears to the court, that any personal data to which the proceedings relate are being processed

(a) only for the special purposes, and

(b) with a view to the publication by any person of any journalistic, literary or artistic material which, at the time twenty-four hours immediately before the relevant time, had not previously been published by the data controller, the court shall stay the proceedings until either of the conditions in subsection (5) is met.

(5) Those conditions are—

(a) that a determination of the Commissioner under section 45 with respect to the data in question takes effect, or

(b) in a case where the proceedings were stayed on the making of a claim, that the claim is withdrawn.

So: if the conditions in s. 32(4) are met, then the court must stay proceedings until either the claim is withdrawn or the ICO has issued a determination under section 45. S. 45 effectively requires the ICO to adjudicate upon the application of the journalism/’special purposes’ exemption to the facts of the particular case. Any determination made under s. 45 can be appealed to the Tribunal: see s. 48(4), which confers a right of appeal on the data controller.

Global Witness has invoked s. 32(4) in its defence and has since applied to the Court for a stay under that provision. The claimants disagree that a stay should be granted. They say Global Witness’ reliance on section 32 is misconceived and have made a cross-application to have the s. 32 defence struck out and for summary judgment in the alternative.

The question for Henderson J was whether those rival applications should be heard together (the claimant’s case), or whether Global Witness’ application for a stay should be determined first (Global Witness’ case). Henderson J has agreed with Global Witness on this point. In reaching the view that the stay application should be heard first, it appears that Henderson J had in mind arguments to the effect that requiring the two applications to be heard together would itself risk pre-empting Global Witness’ stay application and may also result in a more cumbersome and costly process (see in particular paragraphs 16-24). Henderson J went on to make the following observation as to the effect of s. 32(4): :

“Subject to argument about the precise nature of a claim sufficient to trigger section 32, Parliament has, in my view, pretty clearly taken the line that issues of this kind should be determined in the first instance by the Commissioner, and any proceedings brought in court should be stayed until that has been done” (paragraph 21).

The stay application will now be heard at the end of June. The matter will then either go off to the ICO or, if the stay application fails, the claimants’ summary judgment/strike-out applications will be considered. The stay application will therefore determine the immediate trajectory of this particular litigation. Whilst the Court declined to order indemnity costs against the claimants, it did award Global Witness close to 100% of its costs.

Anya Proops acts for Global Witness.

Robin Hopkins @hopkinsrobin

The BBC in the Tribunal: not a public authority under the EIR; strong arguments for disclosure of licence fee legal advice

In Montford v IC and BBC (EA/2009/0114), the appellant had asked the BBC various questions about its expenditure in relation to Cambridge Media and Environment Program, which researched and planned a programme of seminars that had been running since 2005 at which BBC editorial staff discussed issues such as environmental change and world development, with the objective of improving BBC journalism in those areas.

The BBC is a public authority within Schedule 1 of FOIA only within the following parameters: “The British Broadcasting Corporation, in respect of information held the purposes other than those of journalism, art or literature”. The Supreme Court addressed this “derogation” from FOIA in Sugar v BBC [2012] UKSC 4: see our post here. Montford concerned not only the application of Sugar to this request, but also an argument that, given the subject matter of the request and the BBC’s activities, the BBC was a public authority within the meaning of regulation 2 of the EIR.

The Tribunal considered the leading cases on the latter point (Smartsource, Port of London, Network Rail, Bruton) and – applying the multifactorial approach from Smartsource – concluded that the BBC was not a public authority under the EIR. Further, the requested information was not environmental: that requires more than a remote link to the environment, and in the present case there was no link. It was therefore FOIA which applied, and Sugar meant that the requested information fell within the derogation. The BBC therefore did not have to provide it.

The BBC also featured – though not as a party – in another Tribunal decision of late. Crawford v IC and DCMS (EA/2012/0018) concerned the conclusion of the ‘BBC settlement’, ie the funding arrangements (freezing of the licence fee, BBC taking over World Service funding and so on) agreed with extraordinary speed between Jeremy Hunt and BBC Trust chair Michael Lyons in October 2010. The requester – a BBC journalist – sought information about that agreement. By the time of the hearing, the only disputed information was legal advice, which fell within section 42(1) of FOIA. The argument focuses on the public interest.

As readers will be aware, information falling within section 42(1) has very rarely been ordered for disclosure by the Tribunal. One gets the sense from the Tribunal’s decision in Crawford that the appellant here came closer than most to getting the information he sought.  The Tribunal noted the unprecedented speed with which negotiations about matters of great public interest were concluded in 2010. In the circumstances, there were “weighty factors in favour of disclosure of any information which can shed light on how this speedy settlement which affects so many people was reached. In other words there is a significant public interest in transparency and accountability in this case”. The stumbling block, however, was that the disputed legal advice shed only limited light on those concerns. Disclosure was thus not ordered. The Tribunal concluded on a note of sympathy with the requester:

“We would observe that we can understand why Mr Crawford has pursued this matter to a hearing despite disclosure of most of the information originally requested. It seems to us, that despite the exceptional nature of the CSR, the haste of the negotiations and lack of record of what took place means that Mr Crawford has quite understandably had to challenge the DCMS into providing whatever contemporaneous record there might be to help him in his journalist pursuit to provide the public with the facts of this unprecedented Licence Fee Settlement with its far reaching effects.”

Robin Hopkins

IS FOIA ALWAYS MOTIVE BLIND? TRIBUNAL DECISION ON SEX OFFENDERS’ SENSITIVE PERSONAL DATA

In Colleen Smith v IC and Devon & Cornwall Constabulary (EA/2011/0006), the requester asked for information on the number of school teachers in specified towns who had been investigated, cautioned and charged under the Sexual Offences Act 2003 between January 2005 and November 2007. The Constabulary eventually relied on the personal data at section 40(2) FOIA.

The Commissioner found that, where the answer was “zero”, this was not personal data and should be disclosed; otherwise, the information could be withheld under section 40. The Tribunal has upheld this decision, albeit for different reasons.

This decision is worth noting on a number of grounds.

First, this is a good illustration of the approach from Department of Health v IC [2011] EWHC 1430 (Admin) (the “abortion statistics” case – see my post here) to the definition of “personal data” in the context of apparently anonymous statistics. Here the Tribunal considered both the disputed information concerning numbers of alleged sex offenders and the “other information” held by the Constabulary, and was satisfied that living individuals could thereby be identified. Furthermore, for obvious reasons, this constituted “sensitive personal data”.

Secondly, the Tribunal turned to fairness of disclosure. As regards reasonable expectations of data subjects, it concluded (for confidential reasons, and notwithstanding that one can generally assume sensitive personal data will not be disclosed) that the data subjects in these circumstances could have had no reasonable expectation that these statistics would not be disclosed at the relevant time, i.e. late 2007.

Thirdly, the Tribunal also disagreed with the Commissioner that disclosure created a risk of harm to the suspected offenders at the relevant time.

Fourthly, the Tribunal considered whether a condition from Schedule 3 of the DPA 1998 would be met. It did so by asking itself whether paragraph 3 of the Schedule of the Data Protection (Processing of Sensitive Personal Data) Order 2000 applied. That concerns, inter alia, disclosure of information concerning alleged unlawful acts for “special purposes” such as journalism. Disclosure must, however, be “in the substantial public interest”.

The “special purpose” of journalism highlights the following important reminder. It is by now axiomatic that FOIA is “motive blind”. However, the cases of Ferguson v IC (EA/2010/0085) (on which, see my post here) and Brett v IC (EA/2008/0098) imposed an important gloss on that principle. The Tribunal in Ferguson summed up the point thus:

“It is often stated that requester’s rights under FOIA are purpose-blind, in the sense that an applicant’s personal identity and motives for requesting information are irrelevant. This generalisation can mislead. There are some cases in which the applicant’s identity and motives may shed light on the public interests involved. More significantly, the applicant’s identify and motives can be of direct relevance to the exemption in FOIA s40(2) because of the provisions of DPA disclosure and to the interests pursued by the persons to whom the disclosure would be made. For example, a journalist or author may be able to outflank the s40(2) exemption by reliance upon DPA Schedule 3 condition 10 and paragraph 3 of the Schedule to the Data Protection (Processing of Sensitive Personal Data) Order 2000, where it is in the substantial public interest that wrongdoing should be publicised.”

The Tribunal in Smith agreed. The appeal, however, failed because disclosure of this information would not be “in the substantial public interest”.

The Tribunal thought it “reasonable to assume… that the public had an ongoing need for reassurance as to the level of activity by sexual offenders in particular localities and transparency and accountability in what the police were doing about it”. The threshold of “substantial public interest”, however, required a certain level of urgency in the need to reassure the public. That threshold was not met here.

In reaching this conclusion (which the Tribunal described as “finely balanced”), the Tribunal took into account: the evidence as to the machinery for the monitoring and supervision of sex offenders in the community; the risk of vigilantism, which can force suspects to “disappear”, which in turn increases the risk of reoffending. It added that:

“It was not enough, in the Tribunal’s view, that sexual offences by teachers or others in positions of trust was a matter of keen interest to the public. This, on its own, did not make disclosure “in the substantial public interest”. It was the Tribunal’s task to weigh against the wholly understandable concern felt by members of the public on this subject, the detrimental effects that disclosure could have.”

The upshot was that, although disclosure would be fair, section 40(2) took effect because no Schedule 3 condition would be met.

Robin Hopkins