Data Protection Bill

Written evidence submitted by Pact (DPB19)


1. Pact is the UK trade association which represents and promotes the commercial interests of independent feature film, television, digital, children's and animation media companies. Pact has presence in production centres around the UK including London and the South East, Glasgow, Belfast, Manchester/Salford, Cardiff and Bristol; with over 500 members; the majority of these are SMEs (small and medium sized enterprises) with a turnover of less than £50m a year.

2. The UK is a world leader in the sales of TV content globally and revenues continue to rise. Taken as a whole, the TV industry around the world is worth $400 billion. [1] UK independent television sector revenues have grown from £1.3 billion in 2005 to around £2.5 billion in 2017 largely driven by a growth in international sales. [2]

3. Independent producers are using the resulting revenues to become significant investors in the creation of UK content creation and are vital part of the UKs creative industries.

4. Pact welcomes the opportunity to comment on the Data Protection Bill as it is scrutinised in the Public Bills Committee. Our concerns align with other publishers and broadcasters within the sector.


 Throughout the passage of the Data Protection Bill Pact as an association representing independent content producers we have been concerned that a number of amendments tabled in the House of Lords have the potential to seriously inhibit press freedom. We are in alignment with many of the views put forward by broadcasters and publishers within the sector.

We have outlined the key amendments we take issue with below.

Clause 19: Archiving

Under clause 19 (2) as it currently stands media outlets would be prevented from archiving content in the public interest that would be likely to cause substantial damage or distress to an individual. This could apply to both internal journalistic libraries of material held for research and republication, as well as to published online archives – the modern day equivalent of the newspaper microfiche open for examination on demand. The denial of protection for such journalistic archives would result in such material being permanently lost.

This clause would also impact programme makers. Archives are used to create compilation programmes for history, science strand programmes, historical significance, archive programmes, news, and documentaries. These kind of programmes about the changes from the past to modern day document stories on people who have died. Although they no longer have data protection on this current basis it would nevertheless be lost and impact the ability for programme makers to uncover stories with the public interest in mind.

This would certainly be a victory for those engaged in corruption and wrongdoing but would be a severe blow for the rights of the media and the public to disseminate and receive information and would have serious consequences for journalists investigating public interest stories over a period of time. Journalism on matters of public interest will almost always result in data being processed that is likely to damage an individual. Similarly, it will be open to data subjects to say that they have suffered distress due to the mere fact of their data having being processed for archiving purposes.

As required by Recital 153 to the GDPR itself, which explicitly states that the protection for freedom of expression should extend to "news archives and press libraries", the Data Protection Bill must provide protection for the retention of personal data processed for the special purposes, which accords with the exemption at Schedule 2 Part 5 for processing for the special purposes. A new clause should be introduced providing protection for archiving of material processed for the special purposes.

Clause 174(3) and clause 176: Use of the word 'only'

The journalism exemption has been expanded to ensure it provides effective protection for processing for the special purposes which cannot be undermined by external factors. However, other provisions which have an impact on the application of the exemption in practice have not been consistently amended. Article 85 of the GDPR, which requires exemptions to be provided for the purposes of journalism, art or literature, does not require that processing only take place for those purposes in order to benefit from the journalism exemption. Whilst the word 'only' in relation to the special purpose of journalism has been removed from the journalism exemption in the Bill (Clause 170 (3)(c)(i)) the word 'only' remains in clauses 174 and 176.

The effect of this is that clauses 174 and 176 of the Bill will enable the ICO and the courts to intervene, prior to publication, in editorial judgments in circumstances where processing is not considered to be conducted only for the special purposes.

For example where a programme maker works on an investigative story in the early stages there may be reasonable grounds to believe that the dealings are in the public interest ( and being carried out with a view to broadcast in the public interest) even though after investigating there is no story at all it goes towards the development process – unless changes are made a criminal offence would be committed under the current clauses.

It is important that the exemption applies not merely to personal data which will itself be published, but also to personal data which informs any publication or programme.

In circumstances where personal data is sought for the purposes of a police investigation, for example, such data may be considered to be processed for multiple purposes, but that would not diminish the importance of protecting the underlying journalistic material from interference by the subject of any investigation.

The retention of these clauses in their current form would place the ICO, a public body sponsored by a government department (which could find themselves as the subject of an investigation), and the courts in the position of a censor and would deprive them of the power they currently have to resist attempts to require them to interfere prior to publication.

This undermines the protection afforded by the journalism exemption to a significant degree and places a large amount of discretionary power in the ICO's hand.

The word only in clauses 174(3)(a) and 176(1)(a) should be removed to make these clauses consistent with the journalism exemption.

Clause 168 and 169: Cost shifting in data protection litigation

Clauses 168 and 169 would require certain publishers including programme makers who were not members of IMPRESS to pay the costs of data protection litigation. This costs shifting regime would apply even if a programme maker or publisher successfully defended the claim against them. These clauses mimic section 40 of the Crime and Courts Act 2013, which has not been commenced, for data protection purposes. Clauses 168 and 169 are punitive provisions designed to penalise both national and local publishers for refusing to submit to state regulation. This is contrary to Article 10 and 14 of the European Convention on Human Rights.

Such a system would mean that publishers would have to pay the costs of data protection litigation whatever the outcome. The economics of the industry at present (and the currently low value of most data protection claims) are such that it would be a brave publisher who defended a data protection claim all the way to trial. The potential for using litigation, or the threat of it, as a form of censorship is clear and examples of this are already emerging.

March 2018

[1] Analysis for Pact by Oliver & Ohlbaum, published in ‘A New Age for UK TV content and a New Role for the BBC’, August 2014

[2] Pact Census Independent Production Sector Financial Census and Survey 2017, by Oliver & Ohlbaum Associates Limited


Prepared 13th March 2018