Open justice in the digital era and data protection

By Judith Townend

I had the chance to discuss the Centre’s ‘Open Justice in the Digital Era’ project yesterday, at the first joint seminar of the DP Forum and NADPO (The National Association of Data Protection Officers).

The theme was ‘The challenges of complying with evolving standards’, and the other speakers included: Martin Hoskins, data protection consultant; Judith Jones, Group Manager, Government & Society, Information Commissioner’s Officer; Robert Bond, Head of Data Protection and Information Security at Speechly Bircham; and Lynne Wyeth, Head of Information Governance, Leicester City Council.

It provided a fascinating insight into the regulatory and legal challenges ahead (especially in view of the EC’s draft General Data Protection Regulation*), both in terms of the theoretical framework and practical issues on the ground for DP officers (whose number is set to increase, if EC proposals go ahead).

I introduced the Centre for Law, Justice and Journalism’s ‘Open Justice in the Digital Era’ project and the privacy-related issues we have stumbled upon, in discussing potential recommendations for more efficient and systematic digitisation of courts information. There are important issues to consider around Data Protection, Rehabilitation of Offenders and the ‘Right to be Forgotten’, a concept included in the draft Regulation.

A quick summary can be found on my Meeja Law blog.

*A vote on on the lead rapporteur’s report regarding amendments to the Proposed Regulation, scheduled for 29 May, has been postponed, as a result of the high number of amendments to consider.

Conference, 3 May 2013: Obstacles to Free Speech and the Safety of Journalists

Date/time: Friday 3 May 2013, 11.00 – 16.30

Location: City University London, City Law School, Northampton Square campus, St John Street, EC1R 0JD, London, United Kingdom

Organisers: City Law School and the Centre for Law, Justice and Journalism

The conference aims at celebrating the World Press Freedom Day by addressing some of the most topical issues affecting the protection of journalists through internationally established standards. The event stems from City’s commitment to the implementation of the UNESCO-steered UN Inter-Agency Action Plan for the Safety of Journalists 2013-2014. Issues considered will include the scope and effectiveness of extant international guarantees securing personal safety and freedom of expression for media workers in conflict and non-conflict zones, problems of compliance by States with duties arising under international human rights and humanitarian law, and potential strategies for further enforcement.

Confirmed speakers include:

• Geoffrey Robertson QC, Doughty Street Chambers
• Professor Bill Bowring, Birkbeck College, University of London; Field Court Chambers; European Lawyers for Democracy and Human Rights
• Nathalie Losekoot, Senior Programme Officer (Europe), ARTICLE 19
• Professor Jacqueline Harrison, University of Sheffield; Chair, Centre for Freedom of the Media
• Dr. Damian Carney, Principal Lecturer, University of Portsmouth School of Law
• Merris Amos, Senior Lecturer, Queen Mary University of London
• Jim Boumelha, President, International Federation of Journalists
• Dr. Carmen Draghici, Senior Lecturer, The City Law School, City University London

The conference will be of interest to academics, media NGO representatives and practitioners specialising in international law, civil liberties and human rights law, international humanitarian law, and media law.

The event is free of charge. A lunch buffet will be offered to all participants. To register please contact Dr. Carmen Draghici at Carmen.Draghici.1@city.ac.uk by 30 April 2013.

Lorna Woods: Leveson, the ICO and Data Protection

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 15^th 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.

Lorna Woods: Advertising Standards Authority and the Internet

By Professor Lorna Woods

There has been lots of discussion about press regulation and self regulation of late, with the PCC clearly in need of reform [see Leveson recommendations].  There are still voices arguing that self-regulation can work and often the ASA/CAP system is paraded of one such system of self-regulation that works. Certainly, the ASA is an effective organisation, but it is questionable whether it is true self-regulation. It works on the basis that the ASA sanctions have bite as its various members will restrict advertisers’ access to advertising space when advertisers do not comply with the code.  It has a further backstop: the ASA may refer matters to the OFT under the Consumer Protection Regulations or the Business Protection Regulations.  To date, reliance on the backstop powers of the OFT has been very much the exception.  Are things changing, however?

Looking at the decisions of the ASA, a sub strand of cases is appearing. Many of the complained of advertisements appeared on the internet, including quite a number on companies’ own websites.  This raises questions about the ASA (co) regulatory system.  It has been very successful to date, but it has been based on an industry that had effectively a small audience, the media outlets and advertising agencies acting to a large degree as a funnel for the regulatory process, being a relatively small group that allowed ASA rules and rulings to reach out to the advertisers more generally.  Essentially, this was a professional audience.  That has changed: the internet has increased the number of outlets available and introduced the age of the amateur.

Professor Lorna Woods: Freedom of Expression and the Internet

Professor Lorna Woods, Associate Dean for Research and Professor of Law, City University Law School, gave a talk at the Institute of Advanced Legal Studies (IALs) on 14 November 2012, which discussed ‘Freedom of the Expression and the Internet’.

Her slides are available below:

Cybercrime and the culture of fear

Cybercrime, the culture of fear and internet ‘myths versus realities’ were the themes of a seminar given by Professor David Wall, Professor of Criminology, Durham University, at the Centre for Law, Justice and Journalism last week.

It was apt then, to hear Royal United Services Institute (RUSI), research fellow Jennifer Cole on the Radio 4 Today programme this morning emphasising that the Institute’s conference would not be about “cyber warfare” [08:45 am], but “strategic alliances in cyberspace”.  It will look at political and economic relationships with other nations and states and whether these differ in the cyber domain from the ‘real world’, she said. She is to chair a discussion on international cyber co-operation for the 21st century at the RUSI conference, 14-15 November.

In his seminar Wall had argued that the roots of cybercrime are cultural rather than scientific, and shape the way that we view and react societally to online deviance. It is, he says, important to understand this relationship because it frames legal and policy responses to cybercrime.

Links:

• Wall, D.S. (2007). Cybercrime: The transformation of crime in the information age. Cambridge: Polity.
• David Wall profile

Posted by: Judith Townend

Oliver O’Callaghan: Royalty, Nudity, Privacy, and Profitability

The recent publication of topless pictures of The Duchess of Cambridge
in a French magazine, following so closely after the exposure of Prince
Harry’s nocturnal activities in Las Vegas, has returned the issue of the
private lives of public figures to the forefront of the news once
again. Coming as Lord Justice Leveson prepares his report arising from
the eponymous inquiry, there are a number unresolved debates relating to
the publication of private information about celebrities or public
figures such as the royal family.

Read full post on the Inforrm blog…

Oliver O’Callaghan is a PhD researcher in Press Freedom and Privacy at the Centre for Law, Justice and Journalism, City University London

New working papers launched: ‘Justice Wide Open’

New publication calls for an increasingly open and digitised approach to open justice

The real “democratic deficit” in the courts is about limited public access not “unelected judges“, Adam Wagner, a barrister at One Crown Office Row, argued on the UK Human Rights Blog at the weekend, challenging a recent political and media narrative.

In his view, the internet age necessitates “a completely new understanding of the old adage ‘Not only must Justice be done; it must also be seen to be done‘”.

Wagner is one of 14 authors who contributed to a new working publication entitled ‘Justice Wide Open’, produced by the Centre for Law, Justice and Journalism (CLJJ), City University London, following an event on February 29 2012. The individual chapters can be accessed electronically.

The new collection of working papers is part of a wider project encouraging ‘Open Justice in the Digital Era‘. The issues are extensive and diverse: the recommendations of the government’s ‘secret justice’ green paper, now the Justice & Security bill, which would see more cases behind closed doors; the decline in local and national court reporting as a result of cuts in journalism; the courts’ barriers to entry due to ill-informed staff; and the difficulties in obtaining free legal information.

New publication: ‘Trial by Media: Phone-hacking, Riots, Looting, Gangs and Police Chiefs’

Chris Greer and Eugene McLaughlin

Contemporary police chiefs must operate within an information-communications environment that differs radically from the more stable and predictable conditions conceptualised in previous research. The most important dimension of this multi-faceted environment is the emergence of the 24-7 news mediasphere. This paper examines the changing nature of news media-police chief relations, and the rising news media ‘politics of outrage’, by analysing the ‘trial by media’ that defined Sir Hugh Orde’s attempt to become Commissioner of the MPS in August/September 2011.

Greer, C. and McLaughlin, E. (2012) ‘Trial by Media: Phone-hacking, Riots, Looting, Gangs and Police Chiefs’, in J. Peay and T. Newburn (eds.) Policing, Politics, Culture and Control: Essays in Honour of Robert Reiner (Festschrift), London: Hart.

This paper was presented to the Crime, Justice and Society Research Group at City Law School on 30 May 2012.

Upcoming event: Historicising the UK phone hacking scandal – Colin Agur

City Media Network and Sociology Department PhD students seminar series invite you to:

Historicising the UK phone hacking scandal: the origins of wiretapping and early cases in the United States and Britain with Colin Agur (Columbia University, Graduate School of Journalism)

• Tuesday 3 July, 2012, 16:00PM

• Room D318, Social Sciences Building, City University London, Northampton Square, London, EC1 OHB

The ongoing revelations of widespread phone hacking by NewsCorp raise questions about journalistic ethics and how effectively governments can protect privacy in a world of mass mobile phone usage. To understand the significance of the current scandal, we can look to the origins of wiretapping: the relationship between the telephone and recording technology dates back to their nearly simultaneous releases in the 1870s. Since then, as technologies have improved, wiretapping has became a favored tool in police investigations on both sides of the Atlantic, and the subject for several scandals. This talk explores the roles different parties (bootleggers, bookies, police, journalists) have played in the growth and sophistication of telephone surveillance. It contextualises the current UK scandal, showing how a tactic developed by and for police has been put to use by powerful corporate actors.