The Leveson Report included, in Part H, a detailed look at aspects of data protection as it affects the press. Operation Motorman and the ICO failures relating to it was a particular focus. Part H concludes with a series of recommendations for the ICO and for the Ministry of Justice (MoJ).
As the ICO puts it:
‘While recognising some of the constraints placed on the ICO by the limitations of the legal framework for data protection and the resistance of the press to external regulation, there is no escaping the fact that Leveson is critical of the work of the ICO in so far as it involves regulation of the press. This criticism is focused on the response of the ICO to the illegality in the acquisition and use of personal information that was exposed by Operation Motorman, but it also relates to how the ICO has subsequently sought to engage operationally with the press.’
The ICO’s detailed responses are prefaced by a lengthy distancing of itself from the events of 2003. In essence, it is suggested that the ICO of 2012 is a different animal to the toothless tiger that existed then and points out that staff numbers have increased by 75% and enforcement has been beefed up. Of course, we also now have a new Information Commissioner.
The ICO accepts almost all of the recommendations which affect it directly (albeit in one case, ‘in spirit’ rather than blindly). It offers reservations about some of the recommendations for changes to the law directed at the MoJ.
The twin suggestions that aspects of the Data Protection Act 1998, s 32 be amended so as to narrow press exemptions are not met with enthusiasm. The first is said to move the ICO ‘closer to becoming a mainstream statutory regulator of the press’ – a role the ICO clearly does not relish and the second provokes warning about the chilling effect on investigative journalism. This is likely to be music the government’s ears.
However, the recommendation that the right to compensation for distress conferred by s 13 of the DPA is not restricted to cases of pecuniary loss but should include compensation for pure distress is endorsed. So too is the suggestion that ss 32(4) and (5) and 44 to 46 (procedural provisions with special application to journalism) be repealed; the ICO state that its enforcement role related to s 32 ‘is cumbersome and makes any action related to the press very difficult’.
The ICO questions the need for some of the other proposed changes to the DPA but nobody will be surprised by its welcoming the suggestion that the CJIA 2008 amendments be implemented (increasing sentence and introducing an enhanced defence for the press) – these have been top of the ICO shopping list for some time.
The full response can be read (pdf) here.
