Digital Economy Bill

Written evidence submitted by the Media Lawyers Association (DEB 21)

 

Background

1. This is a response to the call for written submissions by the   ​House of Commons Public Bill Committee on the draft Digital Economy Bill.   ​ It is submitted on behalf of the Media Lawyers Association  (the "MLA"), which is an association of in-house media lawyers from many of the United Kingdom’s leading newspapers, magazines, book publishers, broadcasters and news agencies. A full list of the MLA's members can be made available on request.

Introduction

 

2. The Bill  covers a wide-ranging number of topics, most of which the MLA does not wish to comment upon at this juncture. However, Chapter 1 of Part V of the Bill, which is titled Digital Government - Public Service Delivery, gives rise to ​a number of concern​s, particularly because, as currently drafted, it contains a provision [clause 33] which could criminalise journalists for simply doing their job.

Legal background

3. It is widely recognised that the right to information is protected by the main human rights treaties and has developed into a norm of international law. This is expressly recognised in, for example, Article 19 of The United Nations Universal Declaration of Human Rights, Article 19 of the International Covenant on Civil and Political Rights, Article 10 of the European Convention on Human Rights and Article 11 of the Charter of Fundamental Rights of the European Union. Each of these instruments provides in essence that the right to freedom of opinion and expression includes the freedom " to seek, receive and impart information and ideas ". Generally speaking these set a standard that journalists should not be criminalised if they publish information that is held by, inter alia, public authorities and that is in the public interest.

4. This sort of information can [and should] be revealed because the law recognises that society benefits when it is made public. The Council of Europe Convention on Access to Official Documents , adopted by the Committee of Ministers of the Council of Europe on November 27, 2008 provides in the preamble (paragraph 6) that the exercise of the right to access official documents:

( i ) provides a source of information for the public;

(ii) helps the public to form an opinion on the state of society and on public authorities; [and]

(iii) fosters the integrity, efficiency, effectiveness and accountability of public authorities, so helping affirm their legitimacy [...].

5. While t his sort of information may sometimes be embarrassing to a public authority, it overall serves the public and democracy. Consider, for example, revelations over local government corruption [1] or an NHS funding crisis. [2]

The current wording of the Digital Economy Bill ("DEB")

6. Chapter 1 of Part V of the Bill creates a new regime for the "greater" sharing of information among public authorities. (It is arguably that many of these additional powers are unnecessary [3] .)

The criminalisation of onward unauthorised disclosures of information

7. Further and most worryingly from the perspective of the MLA, the proposed new regime in Part V (clause 33) by setting out a new regime criminalising any onward unauthorised disclosure of the information creates new and anti-democratic restrictions on how that data can be treated by journalists, which would appear to seriously threaten (and gag) legitimate journalism. This section includes the imposition of criminal penalties not just for any individual within a public authority who discloses such information but also any recipient (such as a journalist) who also discloses the information.  ​There is no justification for the imposition of this criminal regime. ​There is already sufficient protection in the civil law in terms of the law of confidentiality and employment law and in more serious cases in criminal law under the O​official Secrets ​Act and s.55 of the D​ata ​Protection A​ct​ (as well as via the common law offence of Misconduct in a Public Office). 

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8. The clause as drafted contains no acknowledgement of the role of ​journalists in receiving and imparting information, nor any exemption from prosecution, nor is there any public interest defence provided for journalists.

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9. The criminalisation of the disclosure of information ​in this way sets a dangerous new precedent. It clearly threatens the protections provided by the international instruments referred to above. ​There can be no ​justification for it. ​​C​riminalising recipients such as journalists who disclose such information ​is plainly going too far [4] .

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​ 10. It is also worth noting that the impact of this clause on freedom of expression appears not to have been considered by the DEB drafters . The Explanatory Note that looks at ​the compatibility of the Bill with the European Convention on Human Rights, makes no men tion of this clause or Chapter [5] .

11. Any statutory ​provision ​that could result in journalists going to jail is of serious concern and engages the right to freedom of expression of publishers and broadcasters under Article 10 and will amount to an interference for the purposes of Article 10.

The expansive definition of "personal information"

12. Further, in the context of what amounts to personal information, the DEB contains a definition (clause 32(4)) ​that provides that body corporates would be covered by the term "personal information". This is a worrying development, extending as it appears to do by default, privacy rights to corporations. This is potentially a significant increase of the protections offered to corporates, has the potential to make their dealings les transparent and might conceal an organisation’s affairs. This restricts public oversight of corporate activity and runs counter to the new Prime Minister’s July 2016 pledge to bolster transparency on tax and crack down on ‘corporate irresponsibility’.

October 2016