Select Committee on Culture, Media and Sport Fifth Report

Annex D: Informal meeting with the Information Commissioner


The Information Commissioner submitted a memorandum to the inquiry which set out in summary the extent to which his role touched on matters covered by the Committee's inquiry. The Committee also heard reference to his role from witnesses. Mr Michael Tugendhat QC told the Committee on 25 February 2003: "You do have a privacy commissioner. He is not called that, he is called an information commissioner, but under section 53 of the Data Protection Act 1998 he can support people who do not have legal advice and representation." The Committee held an informal meeting with the Commissioner in the course of the inquiry.


The Commissioner said that the Data Protection Act 1998 was a complex piece of legislation that replaced the previous 1984 Act to implement the provisions of the EU Data Protection Directive (95/46/EC). The Act did not contain the term "privacy" but the Directive did - not least in Article 1 setting out its aims—and many of the Commissioner's European colleagues had privacy in their titles or job descriptions. The concept is embraced by the Act in many of its provisions.

The Commissioner was not there to regulate the media. However, his duties covered their performance as controllers and processors of data, and their activity in respect of other data controllers, just as much as anyone else except insofar as Section 32 of the Act applied. Section 32 exempted personal data processed for the "special purposes" (journalistic, literary or artistic) from certain provisions of the Act if the processing was undertaken with a view to publication provided that the data controller reasonably believed that, having regard to the importance of the public interest in freedom of expression, publication would be in the public interest. In considering this "reasonable belief" Section 32 required account to be taken of the compliance of the data controller with any relevant or designated code of practice - e.g. the Press Code of Conduct.

The Court of Appeal adopted a wide approach to this exemption, making it clear that it applied after, as well as before, publication, even though it was equally clear that the principal rationale was in order to ensure that the Act does not create an oppressive means of prior restraint. During the passage of the Bill quite the reverse impression had been given and the exemption's application to processing "prior to publication" stressed by Lord Williams. It was for the Law Lords to finally settle this matter should a relevant case ever get to come before it - and Naomi Campbell had been given leave to appeal to the House of Lords in her case against the Daily Mirror (Campbell v MGN Ltd 2002) which involved the Data Protection Act..

Section 32 was certainly not, therefore, a huge get-out clause for the media; it applied to certain provisions of the Act to the extent that there was a reasonable belief, in conjunction with compliance with the PCC Code as interpreted by the courts, that compliance with any of those provisions was incompatible with journalistic purposes.

Section 55 of the 1998 Act created a criminal offence in relation to the unlawful obtaining or disclosuere of personal data. The section 32 exemption had no relevance here and the section applied to everyone. The offence would arise where someone knowingly or recklessly obtained or disclosed (or procured the disclosure of) personal information without the consent of the data controller. This might arise, for example, where a journalist - or an intermediary - impersonated someone to obtain personal information from a bank or from a government department such as the Inland Revenue. The sale of personal information obtained in this way is also an offence, as is offering to sell such information. There are various defences available but these are narrowly drawn. Under the analogous provisions of the previous Act (Section 5(6)-(8) of the Data Protection Act 1984) there was at least one prosecution in 1997 of a private detective who was convicted of extracting personal data from BT on behalf of various newspapers. A "Blaggers' video" had recently been made by the Commissioner to warn people with access to personal data of the common ruses used to extract personal and private information from data controllers.

Section 53 of the Act empowered the Commissioner to provide assistance to individuals to take forward actions under specified parts of the Act relating to the 'special purposes' and in a case involving, in his view, a matter of substantial public importance (i.e. where important clarification of the law was likely to result). The Commissioner had yet to use these powers.

The Commissioner raised the issue of co-regulation; effectively the system recommended by the National Heritage Committee in 1993 in respect of the press and raised in evidence to this Committee. He pointed to the example of the Advertising Standards Authority where Regulations in 1987 had created a back-stop role for the Office of Fair Trading. The Commissioner's impression was that, while this had been initially resisted as a threat to self-regulation, in the event the ASA had found the capacity to refer very difficult or complex cases to the OFT quite useful. The Commissioner said he had no wish to be given further responsibilities in addition to the two very considerably complex pieces of legislation under which he already had duties. However, he felt duty-bound to point out the significant contiguity of some of his responsibilities with some of the matters under consideration by the Committee and to offer the observation that a wholly new regulator, with an over-lapping remit, could add further confusion to an already uncertain legal environment.

The issue of the definition of a "public authority" under the Human Rights Act (HRA) was discussed. Clearly the Information Commissioner was such an authority as were the statutory regulators. With regard to the PCC it was at least arguable that it was such an authority (and it was believed that the PCC itself accepted this - not least by expressly adopting procedures as if it were subject to the jurisdiction of the Administrative Court). Government policy, however, since the days of the "last chance saloon" made applying the usual rule of thumb - would the state perform the function if the self-regulatory body did not exist? - less than straightforward. In the final analysis it was the role of the courts to decide the issue in the light of the HRA.

The Commissioner pointed to some legal developments related to privacy. He felt that the courts were cautiously moving towards a common law concept of privacy in the same neighbourhood at least as the law of confidence. In his opinion the Court of Appeal had come very close to recognising that, in an appropriate case and on particular facts, a "breach of privacy" would be found as opposed to a "breach of confidence".

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Prepared 16 June 2003