Journalists face data protection fight for right to dig for stories

Roy Greenslade
18 Jun 2008

It has never been easier for journalists to obtain personal information about people. The internet opens windows into the private lives of almost everyone, whether they surf the net or have never touched a computer. There are protections in place, of course, not least from the Data Protection Act (DPA), one of those well-meaning pieces of legislation that is understood by so few and misused by so many. Upset by a persistent cold caller trying to save me money on my mobile phone bills - as if - I asked her for her name: "I can't tell you that," she replied. "It's against my human rights and that data protection thingy."

She is far from alone in citing that thingy. News International's recorded message on its main Wapping switchboard announces that "due to data protection policies" operators are not allowed to give out staff email addresses or even their direct dial phone numbers.

For a company to be so overly protective seems bizarre and, given that it is Britain's largest newspaper company employing journalists whose daily jobs involve them trying to discover people's private numbers, blackly ironic.

Anyway, how can the revelation of journalists' office phone numbers threaten their privacy? It is symptomatic of the way in which that the DPA has come to shape corporate reaction to harmless and legitimate inquiries.

I'm all for people enjoying their privacy, of course, and by people I mean journalists too. But there are times when it is of overriding importance for reporters to intrude into a person's privacy for the greater public good.

The man who oversees the working of the DPA, the Information Commissioner, Richard Thomas, understands that fact, but it has taken some time to convince him. Under clause 55 of the Act, it is an offence to obtain, disclose or procure the disclosure of personal information. Those found guilty can face unlimited fines.

But that was not good enough for Thomas who produced two reports - What Price Privacy? in May 2006 and What Price Privacy Now? some six months later - in which he called for culprits to be jailed.

The Government rather liked the sound of that - no surprise there - and decided to create a two-year prison sentence for the offence in the draft of its Criminal Justice and Immigration Bill. Unsurprisingly, this threat to jail journalists for going about their normal investigative tasks struck editors, the Press Complaints Commission (PCC), the Newspaper Publishers Association and the Newspaper Society as a draconian move.

None of them disputed that it should remain an offence to invade people's privacy for no good reason but they could not stomach the idea of reporters being convicted of trying to discover facts about individuals as a matter of public interest.

Much lobbying went on and the result has been a sensible compromise. It was agreed that the DPA's clause 55 should be amended so that journalists would have the right to seek out information if they have a "reasonable belief " that it would be of public interest.

Two months ago the Government decided to amend its justice proposals too. The new law will contain a clause threatening jail, but it cannot be implemented unless the Secretary of State seeks approval from Parliament to activate it. In other words, a public debate would be necessary before the jail sanction could ever be introduced. Thomas sees this as "a powerful sword of Damocles hanging over the heads of anyone involved in obtaining personal data".

However, the sword will surely be blunted still further following yesterday's announcement of the third prong of the compromise deal. The committee of editors charged with making changes to the code of practice, the one administered by the PCC, is to consider tightening up the rules

Its chairman, Paul Dacre, the editor of the Daily Mail, said: "The threat of custodial sentences under the Data Protection Act was particularly worrying because of the effect it would have had on press freedom by inhibiting investigative reporting.

"Such sentences would also have meant that Britain would have been one of the only countries in the civilised world to jail journalists trying to do their job."

While the code committee is thinking about what to do, the newspaper trade bodies are going to step up their education of journalists to ensure they understand the Data Protection Act. I don't envy the job of those educators, but it's obvious that it must be done.

There will also need to be some consideration of the use by newspapers of private investigators to obtain information. It is just not good enough to have people break the law at arm's length.

One further irony is that the only journalist to go to jail in recent times for illegally obtaining information by covert means was not charged under the DPA.

Instead, the News Of The World's royal editor, Clive Goodman, ended up serving a four-month prison sentence for hacking into the mobile phone voicemail of royal employees after being found guilty of offences under antiterrorism legislation, the Regulation of Investigatory Powers Act.

I have never quite understood why that particular Act was used. But it is a reminder that journalists in Britain, whatever the public might think, do not have carte blanche to do as they like.