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Data Protection Bill

Written evidence submitted by Associated Newspapers (DPB29)

Dear Committee Members

1. I am Editor Emeritus of Associated Newspapers, publishers of the Daily Mail, Mail on Sunday, Metro, MailOnline and Metro.co.uk. All our titles are members of the Independent Press Standards Organisation (IPSO), the independent press regulator.

2. We wish to object in the strongest possible terms to the inclusion in the Data Protection Bill of Clauses 142, 168 and 169.

3. I will deal first with Clauses 168 and 169. These clauses have no place in this legislation, but were added in the House of Lords by proponents of the would-be press regulator Impress.

4. The vast majority of the press in the UK - 1500 newspapers and 1100 news websites, including our publications - are regulated by the independent regulator IPSO. We do not belong to Impress as a matter of principle, because it operates under the Government-imposed Royal Charter for the Press, which we believe is incompatible with press freedom.

5. The result is that Impress has fewer than 100 members, none of them national newspapers or regional newspapers of any substance and many of them little more than blogs. Its funding is supplied, via a family trust, virtually entirely by the former motor-racing tycoon Max Mosley.

6. The effect of Clauses 168 and 169 is that any publication which is not a member of a Royal Charter-approved regulator, i.e. Impress, would have to pay ALL the costs of any legal action taken against it under the new Data Protection Act - even if it wins its case.

7. This is a measure so illiberal it is staggering it has found its way into proposed legislation in a Parliamentary democracy which rests on freedom of speech and subscribes to the European Convention of Human Rights.

8. Although the Royal Charter was drawn up by the then Government and approved by Parliament, there is no statutory obligation for publications to join a regulator approved under it, Parliament recognising that this would be an infringement of freedom of expression.

9. As Antony White QC argues very powerfully in his legal opinion commissioned by the News Media Association ( Appendix 1 [1] ), this means Clauses 168 and 189 have the effect of penalising publications for exercising their legitimate right to choose not to join a government-sponsored club. This, he contends, is in breach of Articles 6, 10 and 14 of the European Convention on Human Rights.

10. It particular it denies news publishers equal access to justice if they exercise their legal right not to join a government- approved regulator . Equally unfairly, if they do join the costs burden falls entirely on claimants , who would therefore also be denied equal access to the courts.

11. The stated pu r pose of the Clauses is to force news publishers to offer claimants access to an arbitration scheme. Given that Clauses 168 and 169 relate to data protection claims, it should be noted that, unlike the IPSO arbitration scheme (of which the Daily Mail, Mail on Sunday and Metro are members), the Impress scheme does not specifically offer arbitration for data protection claims. If Clause 168 and 169 Impress members may therefore also be liable for all costs in data protection actions brought against them.

12. If a former Soviet republic was to impose a law under which under which anyone could sue a newspaper, at the newspaper’s cost, unless that newspaper joined a regulator approved by the government and funded almost entirely by one very wealthy individual, there would be outcry from all shades of liberal opinion. This is what is now happening here, in Britain.

13. Virtually every form of journalistic activity involves the collection, storage and publication of personal data . At the moment this is protected by the journalistic exemption, which is enshrined in Clause 170 of the new bill. Although the number of legal claims under the Data Protection Act is increasing, it remains manageable.

14. However if claims could be made at no risk to the complainant the number would be bound to grow exponentially.

15. Personal data need not be intrinsically private - it can include anything from a telephone number to a head-and-shoulder photograph, and even evidence in a court case.

16. Max Mosley himself provided graphic evidence of the threat Clauses 168 and 169 pose to journalism, and the public’s right to be informed, when a month ago he launched legal claims under the existing Data Protection Act against four newspapers - the Daily Mail, The Times, The Sun, and the Daily Mirror.

17. In the case of the Daily Mail he is demanding that we remove, and never publish again, information relating to him in 34 articles published since 2013. (Appendix 2 [2] )

18. He is arguing that references to him taking part in the sado -masochistic orgy exposed by the News of The World must be removed because the judge in the ensuing privacy trial ruled that the newspaper’s report was not in the public interest, and therefore the journalistic exemption does not apply. This is despite the orgy being the subject of a public court judgment.

19. Equally extraordinarily, he is demanding that the Daily Mail removes references to Impress being ‘financed’, ‘funded’, ‘bankrolled’ by, financially reliant’ on, or ‘in the pocket’ of Mr Mosley.

20. He claims that although he has funded Impress to the tune of £3.8million over four years, it is inaccurate to make such claims because a judicial review of the Press Recognition Panel ’s recognition of Impress ruled that the fact that the money is funnelled through two charities means the regulator can still be said to be independent.

21. It is particularly ironic that Mr Mosley should be bringing this case when the House of Commons is debating Clauses 168 and 169. The reason for the continuing public interest in his trial, apart from its legal significance, is that it was the event which triggered his campaign to impose state-approved regulation on the Press. And the fact that he provides, via his family trust, virtually all the funding for Impress, is one of the reasons - though by no means the only one - why the vast majority of the Press will not agree to be regulated by it. He is therefore attempting to use data protection law to prevent public discussion of why and how he has campaigned to have it changed.

22. Across all our titles Associated Newspapers publishes around 330 ,000 stories a year in the UK . It is in the nature of journalism that a large proportion of them involve disputes - whether in the courts or other venues, and information that individuals would rather the public did not know, despite it being in the public interest that they should. Even if only 1 per cent of the subjects of those stories engaged in the sort of legal action Mr Mosley has launched, that would mean defending more than 600 legal claims a week - and bearing all the cost of all of them. It would make all but the most anodyne journalism impossible.

23. The baleful influence of Mr Mosley in this debate does not end there. Members of the Committee of all political parties will be aware that he has supplied £540,000 to fund the office of Tom Watson, the Opposition Culture spokesman, and supporter of Clauses 142, 168 and 169.

24. Turning to Clause 142, we would make two points. Firstly that the issue of misuse of personal data and associated offences by journalists has already been exhaustively examined by the original Leveson Inquiry and subsequent criminal trials, at a cost to the public of £49.1million and resulting in 40 criminal convictions. One must ask what public interest is served by instigating a further public inquiry which, in the absence of fresh allegations of data misuse, can only be a fishing expedition.

25. Secondly, this view is supported by the fact that Clause 142 completely omits the main focus of the original Leveson 2, which would have been to examine whether the close links between senior journ a lists in some news organisations and police and politicians meant that allegations of data misuse and other related offences were not properly investigated. At the same time Clause 142 broadens the scope of the proposed inquiry from newspapers to all journalists, including broadcasters.

26. Finally we would point out that the election manifesto on which the public voted the current Government into office promised that section 40 of the Crown and Courts Act, from which the wording of Clauses 168 and 169 is copied, would be repealed, and Leveson 2 would not proceed. Following a full public consultation, which showed no great public demand for either measure, the Culture Secretary recently announced that section 40 would not be implemented and Leveson 2 would not go ahead.

27. It is an affront to democracy that the unelected House of Lords should seek to thwart execution of those election promises by smuggling versions of section 40 and Leveson 2 into an otherwise largely uncontroversial bill.

28. Britain has enjoyed - and benefited from - a free press for 300 years. It is shameful that this freedom is once again under threat, and we urge the Committee to end that threat by rejecting Clauses 142, 168 and 169.

Peter Wright

Editor Emeritus

Associated Newspapers

March 2018


[1] Appendix 1 is attached as Annex 1 to written evidence from the News Media Association (DPB24)

[2] Daily Mail article Max Mosley launches legal bid to scrub his notorious German-themed orgy from history in a chilling attack on Press freedom, 14 February 2018

[2]

[2]

 

Prepared 14th March 2018