Law, Justice and Journalism

Archive for March, 2013|Monthly archive page

Lorna Woods: Leveson, the ICO and Data Protection

In Journalism, Law, Media regulation, Research, Resources on March 25, 2013 at 8:57 am

By Professor Lorna Woods

One aspect of the Leveson recommendations that seems to have escaped the headlines is that relating to data protection, though implementation of his recommendations could give those adversely affected by media treatment of their personal data some tools.

Section 32 Data Protection Act provides an exception to data processing rules in relation to a number of ‘special purposes’, which includes media purposes.  The scope of the exemption is pretty broad: it provides an exemption to non-compliance with any of the Data Protection Principles except the Seventh Principle (security), the right of access and objection (Ss32(2)(a) Data Protection Act).

This exemption is available provided the press-related data controller believes that the special importance of the public interest in freedom of expression is served by the processing of personal data, and that the processing of such data is with a view to publication.

The terms of the Act in this regard are thus vague and potentially subjective; they do not really give any clear steer on when processing of data might be protected.  Section 32(3) specifically provides, however, that when considering whether such belief was reasonable, “regard may be had to [a data controller’s] compliance with any code of practice” and provides that such codes may be designated by statutory instrument.

While there are existing codes for journalists (which are not limited to the PCC Code (SI 2000/1864), but include those put together by other media organisations, e.g. the BBC), they are not sufficiently detailed guidance on data protection obligations either.  Section 51 Data Protection Act empowers the drawing up of codes of good practice, or encouraging trade associations so to do. On this basis the ICO consulted (close date 15th March) on the intention to produce a code of conduct aimed at media organisations, including but not limited to the press, as it proposed in its response to the Leveson Report.

So given that there are existing codes under the system, what is the big deal about a new code?  Well, if it is designated under s.32(3), then this brings into play the (statutory) enforcement procedures under the Data Protection Act.  Given the monetary penalties that the ICO can now apply, this might get some attention.

More generally, the ICO has committed itself –again in response to Leveson – to “provid[ing] regular updates to Parliament on the effectiveness of the measures we are adopting in response to Lord Justice Leveson’s recommendations and more generally on our assessment of the culture, practices and ethics of the press in relation to the processing of personal data”. This may give evidence about whether any new system of regulation is working which, crucially, comes from outside the system.

This then re-emphasises the importance of the scope of the journalistic exception and the meaning of ‘public interest in freedom of expression’, which is presumably tied in to the fourth estate capacity of the media, rather than its capacity for spreading rumour and gossip.

Further, how closely connected must the processing of the data be to the publication of a story to benefit from the exception? Mr Jay made this point at the Leveson Inquiry:  when the press obtains an ex-directory number (for hacking purposes), is it likely that the press would publish the ex-directory number? The answer is “no”, so presumably processing such material cannot benefit from Article 32.

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Lorna Woods: Reviewing the Communications Review

In Journalism, Law, Research on March 19, 2013 at 3:27 pm

Professor Lorna Woods

As part of the ongoing discussion surrounding the Communications Review, Lorna Woods, Professor and Associate Dean of Research at City Law School, City University London, explains which areas of communications regulation are being given the most attention, and which areas should be given more. This post was originally published on the LSE Media Policy Project blog.

The current government has long promised us a review of the Communications Act 2003, but with Leveson rumbling on in the background, progress seems slow.  The review process was launched by Jeremy Hunt in 2011 who issued an ‘open letter’ and DCMS created a review webpage. In 2012 a series of seminars were held (aimed at industry, not consumers/audiences).  The topics identified were:

  • Consumers: this includes content regulation, and online transactional and audience behaviour.
  • Competition in content: this envisages the market as the solution to diversity issues.
  • Spectrum: this concerns greater roll-out/connectivity and assumes the desirability of spectrum trading.  For example, Ofcom has recently issued a consultation on one aspect of spectrum: whether there should be charges for national digital terrestrial TV (DTT), local TV and digital audio broadcasting (DAB), in line with Ofcom’s duty to secure optimal use of radio spectrum.
  • TV Content: this questions the current requirements of the existing regulatory framework for broadcasting and looks for other options such as the introduction of tax incentives to support the creation of digital content. It also considers the policy objectives for UK and European regulatory requirements for Electronic Programme Guide (EPG) prominence, conditions for carriage consent and product placement. The Culture, Media and Sport Committee is examining these issues as part of its inquiry into support for the creative industries, with a focus on the development of high quality British content.
  • Radio: this questions whether the radio licensing regime is sufficiently flexible for future changes, and whether there are existing barriers to the on-going success of the radio sector.

Two points should be emphasised. The first is a recognition of a changing media environment that focuses on new (or not so new) services beyond traditional mass media.  The second is a deregulatory impulse.  These are no doubt important topics, but does the Communications Review cover everything that is actually under review, or needs reviewing?

While the review did identify carriage issues – and certainly the issue of the fees charged to PSB by satellite companies has risen up the agenda – it did not raise the issue of net neutrality directly, although this has already been the topic of considerable discussion.  (See, e.g., Ofcom’s approach as well as the voluntary code. Ofcom’s workplan suggests there may be more to come.)

The review did not directly address challenges in broadcast regulation, implicitly affirming the consensus established in the 2003 Act. Several broadcasting licences are currently being renewed, while the BBC Charter is not due for renewal until 2016. It may be that the Government was wary of opening the door to calls for Leveson to be implemented, or that the government is complacent if certain PSB obligations are weakened following licence renegotiation. Moreover, it is often unclear which platforms for content are subject to which types of regulations, such as the Authority for Television On Demand (ATVOD) rules. Having a fractured and piecemeal system does not reflect a converged environment and may be confusing for consumers.

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Comment: ECtHR decision in Pirate Bay case – Neij and Sunde Kolisoppi v. Sweden

In Comment, Law on March 15, 2013 at 12:39 pm

By Professor Lorna Woods

The European Court of Human Rights declared the Pirate Bay claim for freedom of expression inadmissible as being manifestly ill-founded [summary, PDF].  It follows the case earlier this year of Ashby Donald (Appl. nr. 36769/08 judgment 10th January 2013) and while it follows much of the reasoning in Ashby Donald, the court’s decision here carries some unusual points worth noting.

Ashby Donald and the Pirate Bay case both take place in a digital context in that they both relate to use of the Internet.  Ashby Donald was noteworthy as it seems to accept that speech infringing copyright can in principle claim protection.

This might seem good news for Pirate Bay, but the terms of Ashby Donald recognised the need to protect copyright, meaning freedom of expression by no means automatically trumps copyright protection.  It certainly does not appear to be a pirate’s charter, as is re-affirmed by the admissibility decision in Pirate Bay: Neij and Sunde Kolisoppi v. Sweden (Appl. nr. 40397/12, decision 13th March 2013).

The applicants were both involved in the running of the website “The Pirate Bay”, one of the world’s largest file sharing services on the Internet.  They were charged with complicity to commit crimes in violation of the Copyright Act. Subsequently, several entertainment companies brought private claims within the proceedings.

In April 2009, the Stockholm District Court sentenced them to one year’s imprisonment and held them, together with the other defendants, jointly liable for damages.  The applicants complained that the finding of complicity had violated their freedom of expression; they should not be held liable for others’ use of their service.  Their claim was very broad.  The Court summarised it thus:

“According to the applicants, Article 10 of the Convention enshrines the right to offer an automatic service of transferring unprotected material between users, according to basic principles of communication on Internet, and within the information society. In their view, Article 10 of the Convention protects the right to arrange a service on the Internet which can be used for both legal and illegal purposes, without the persons responsible for the service being convicted for acts committed by the people using the service. In this connection, they referred to international frameworks, expressing a far-reaching right to receive and provide information between Internet users.”

While the Court eventually rejected the claim as manifestly ill-founded, its reasoning might suggest that to some extent accepts this broad-reaching right exists.  It started by recognising the importance of Internet, but linked to public sphere (e.g. news) raising the question of the extent to which the Internet is special in this regard.

The Court reaffirmed that “Article 10 applies not only to the content of the information but also to the means of transmission or reception since any restriction imposed on the means necessarily interferes with the right to receive and impart information” – but without considering who it restricted and whose right to expression is affected.

The Court then further blurs this point: “the applicants put in place the means for others to impart and receive information within the meaning of Article 10 of the Convention. The Court considers that the actions taken by the applicants are afforded protection under Article 10 § 1 of the Convention and, consequently, the applicants’ convictions interfered with their right to freedom of expression”.

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Upcoming event, 6 March 2013: The Future of Humanitarian Reporting

In Comment, Events, Journalism on March 1, 2013 at 9:59 am

Glenda Cooper

The Haitian earthquake, January 2010: a man performs brain surgery on a 15-year-old girl; a second writes a gripping eye-witness account for the Guardian about the dead bodies piled up in the street.

In the past it would have been pretty obvious which was the journalist and which the aid worker. But Dr Sanjay Gupta was working for CNN as a reporter when he carried out the surgery; Prospery Raymond, who is named as the author of the Guardian piece, was Christian Aid’s country manager who survived the quake.

Meanwhile the latest news was being broken via social media. As the Columbia Journalism Review noted, new media platforms such as Twitter, Facebook and Skype were crucial in delivering early information about damage and relief efforts. By the time Hurricane Sandy occurred two and-a-half years later, people were using the photo app Instagram to upload pictures of the storm at the rate of 10 a second – 1.3 million hashtagged in total.

We’ve come a long way since Michael Buerk’s seminal piece from Korem in 1984. As a piece of journalism that report still has the power to move and shock. But what is astonishing is that in seven minutes only two voices are ever heard: Buerk and a white Medecins Sans Frontieres doctor.

But what does it mean for the way we report humanitarian disasters in future if ordinary citizens can break the news, aid workers can act as journalists, while journalists cross the line and get involved?

What kind of pictures and reporting are we exposed to if anyone can upload pictures of a dying victim of a hurricane – or a dying dictator, as happened in the case of Gaddafi?

And while a wealth of user-generated content made the 2004 tsunami a mega-story and saw mega amounts of aid donated ($1,241 per survivor – 50 times the worst-funded crises that year, according to the Red Cross), what kind of disasters will we end up covering if it takes tweets and Facebook updates to get our attention?

Next week, a conference organised by City University’s Centre for Law Justice and Journalism, in partnership with the Red Cross, will debate these very issues with some of the foremost names in academia, journalism and aid work. It will look at the latest developments in the use of UGC by mainstream media and aid agencies, the relationship between journalists and aid workers now that social media is a factor, and consider how, in a Twitter age, we should think about reporting emotion and trauma?

Speakers include:

The BBC College of Journalism will be blogging from the conference: full programme. Places are limited. If you wish to attend please email Peter Aggar, or for any queries about the schedule contact Glenda Cooper.

This post first appeared on at the BBC College of Journalism.