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.