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The noble Baroness said: My Lords, we on these Benches are very glad that the Government did not carry out their threat to remove Clause 76 because of all the pressures they were under. We are relieved to see that it is still in the Bill, and that they have tabled Amendment No. 94C, which answers some of the worries about journalism. That improves the measure substantially as there were some genuine worries about increasing a penalty from a fine, which a newspaper as a corporation can pay, to a threat of imprisonment, which would inevitably land on an individual journalist. That takes the question of the freedom of the press into a different place. The Government have correctly recognised that and have tabled their amendment.
I am not quite so keen on government Amendment No. 94B, which is the secondary legislation to
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Lord Henley: My Lords, as the noble Baroness, Lady Miller, reminded the House, the Government, in the form of the noble Lord, Lord Hunt, threatened to remove this clause entirely because they were so worried about timethis was the Bill that they introduced in June or July last year. If I remember correctly, when this was discussed in Committee, the noble Lord said that the Government would remove the clause if we could not reach agreement about some satisfactory compromise.
I am not sure that we have necessarily reached that compromise, but the Government have at least brought forward an amendment that does somethingeven if, as the noble Baroness puts it, they are between the proverbial rock and hard place. I do not think that we would want to oppose the Government provision, even if it is not utterly satisfactory, but at this stage we want to hear from the Minister exactly what the provision does and how it does it. In the light of that, I intend to sit down and listen to what he has to say.
The Earl of Erroll: My Lords, yesterday, I was at Infosec on a panel with the Information Commissioner on this very subject. It is a huge problem. As the Information Commissioner says, some sections of the press have been concerned that the provision could have a chilling effect, but the interesting thing is that no new criminal offence is being created and there is already a defence for journalists whose activities can be justified as being in the public interest. So why are they so worried? The answer is that the previous penalties did not deter them. Reading the commissioners excellent report, What Price Privacy Now?, we find that the Daily Mail tops the poll with 952 transactions positively identified, with 58 journalists buying information from databases. That is sensitive information about people that could be used. If the journalists were not actually working for the newspaper or moved, they could be misusing information. We have to tighten up on this. Therefore, although we would have preferred the tighter clause, we welcome what the Government are trying to do here.
Lord Hunt of Kings Heath: My Lords, in my usual place, between a rock and a hard place, I respond positively to both the noble Baroness, Lady Miller, and the noble Lord, Lord Henley, for what I think is a general welcome for the work that has been undertaken since our previous helpful debate in Committee. I will come to the point raised by the noble Earl in a moment, because it is very important and goes back to the reason why the Government brought forward the provisions in the first place.
As noble Lords will know, Section 60 of the Data Protection Act 1998 currently specifies the penalties for offences committed under Section 55 of that Actthe unlawful obtaining, disclosing, procuring or selling of personal data. It provides for a maximum penalty of £5,000 on summary conviction and an unlimited fine for conviction on indictment. Given the very experience that the noble Earl raised today, Clause 76 sought to increase the maximum penalty for this offence to a custodial sentence of two years following conviction on indictment, in addition to the existing provision for fines, to make the offence really bite in view of the problems that have been brought to light, especially by the Information Commissioner.
On the other handthis is where we came to the difficultyas the noble Baroness, Lady Miller, suggested, there are concerns about the chilling effect of this increase in penalty on investigative journalism. Let me make clear, as I did in Committee, that the Government have no wish to curtail legitimate and responsible journalism. That was the basis on which I said that I intended to remove the clause unless we could find a satisfactory solution balancing the need to strengthen the protection of individuals rights and respect for their privacy on the one hand, and freedom of expression of the press on the other.
There has been a flurry of debate both within the media and in our discussions. I am glad to say that a satisfactory solution has been found, so we will not now simply remove Clause 76, but replace it by my Amendments Nos. 94B and 94C. The new clauses, and the associated consequential amendments, reflect the result of that extensive discussion. We think that that strikes the right balance. Here we have a strong signal that the lucrative and illegal trade in personal data will not be tolerated and that a stronger deterrent is available if that activity continues. If it did continue, the Government would bring an order before your Lordships House and in the other place.
Amendment No. 94B confers on the Secretary of State a power to make an order altering the maximum penalty for an offence under Section 55 of the Data Protection Act. The maximum penalty that could be specified in such an order is two years imprisonment. Under this new clause, the Secretary of State is required to consult interested parties, including the Information Commissioner and media organisations, before making such an order. Conferring a power to make an order in this way enables the Government to keep under review progress in combating the market in illegally acquired personal data before deciding in
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In addition, the Government will work with the Information Commissioner, the media and other interested parties on raising awareness of how to avoid committing an offence. This will include training, an education and information campaign and other suitable activities. As part of its current review, the Sentencing Guidelines Council will produce guidelines on this offence in due course, which all courts will need to take into account.
Amendment No. 94C provides for an additional defence for Section 55 offences where the offender acted with a view to publishing for journalistic, literary or artistic purposes and in the reasonable belief that their actions were justified in the public interest. The noble Baroness, Lady Miller of Chilthorne Domer, has sought in some of her amendments to deal with this matter. I hope she will accept that my amendment does that.
I take this opportunity to thank all parties who have worked together to reach a solution, and I put on record the Governments thanks for the tireless and highly respected work of the Information Commissioner, Richard Thomas, and his office, who have made such a compelling case for a serious sanction against people who deliberately or recklessly misuse personal data.
An order made under an order-making power is not subject to amendment, but I must say to the noble Baroness, Lady Miller, that it is subject to the affirmative procedure. Moreover, the Secretary of State must consult the Information Commissioner, and media organisations and other interested parties where he considers this appropriate, which means that there will be considerable discussion before an order is brought before your Lordships House. I hope that it will not be necessary to do so, because I hope that the very act of making these amendments will send the right signal. The Information Commissioner has made some very important and persuasive points in the past few weeks which, combined with the education programme that I also described, will I hope ensure that this is taken seriously and that we will not have to bring an order. If this does not work and it is clear that invasions of privacy continue, we will not hesitate to take action.
Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for the strength of his reply, which sends an important message to unprincipled newspapers that use this sort of information and encourage their journalists to do this sort of thing, thereby threatening the freedom of the press.
I do not envy the Government if their threat does not succeed and they have to have these discussions with the parties involved and bring in an order, because they will probably be in the same place that they were in between Committee and Report. The discussions will be very difficult. Nevertheless, this is an important line to have drawn, and the Government have certainly done a good job in doing so. I join the Minister in paying tribute to the Information Commissioner, who
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(1) The Secretary of State may by order provide for a person who is guilty of an offence under section 55 of the Data Protection Act 1998 (c. 29) (unlawful obtaining etc. of personal data) to be liable
(3) The Secretary of State must ensure that any specified period for England and Wales which, in the case of summary conviction, exceeds 6 months is to be read as a reference to 6 months so far as it relates to an offence committed before the commencement of section 282(1) of the Criminal Justice Act 2003 (increase in sentencing powers of magistrates courts from 6 to 12 months for certain offences triable either way).
The noble Baroness said: My Lords, this amendment concerns the additional offences under the Data Protection Act that we believe should be brought in. Data controllers currently do not face anything like adequate sanctions if they intentionally or recklessly disclose information, or indeed are repeatedly negligent. We did not spend very much time on this issue in Committee because we were so taken with the fact that the Government might withdraw the entire clause, so we had a fairly limited debate. However, I went back and read what the Minister said:
We are committed in principle to the introduction of new sanctions under the Data Protection Act for the most serious breaches of principles. The proposals that we will bring forward will be part of a consultation paper that is being written at the moment. I am sympathetic to the intent of the amendments proposing new sanctions under the Data Protection Act, but we should await the result of the consultation before considering what legislation should be taken forward.[Official Report, 5/3/08; col. 1116.]
On the face of it that is entirely reasonable, but we know the pressure of legislative time. The amendment is very simple in what it seeks to do and has the benefit of covering data breaches by government officials.
Goodness knows, this is not exactly a new issue. The Government have had time to address it. In 2002 in another place my honourable friend Paul Burstow revealed that a total of 1,354 government-owned computers had gone missing over the previous five years, while much more recently, as noble Lords will be aware, vast amounts of data, whether from Her Majestys Revenue and Customs or the health sector, have been lost. The issue has been around for a long time, and not only in government sectors. The private sector, as we know, can be negligent, and it can do all
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The Conservatives have also tabled an amendment in this group, to which I am sure they will speak. It has as many merits as our own when it comes to the public sector, but they have chosen to leave the private sector entirely out of it. The difficulty with that is that if you are a member of the public, it does not matter if it is the public sector or the private sector that has lost your data; the fact is, your data have been lost. The public need to depend on data controllers to be absolutely reliable and to do their utmost to safeguard peoples personal information. For that reason, we should aim to cover both public sector and private sector data controllers. With the increased blurring of the lines between the public and private sectorsI appreciate that this is often covered by contracts; indeed, I think the wording in the Conservative amendment mentions government contractsit will not always be simple. Surely the public have an absolute right to expect data controllers in charge of any private information to be given immense incentives to be as careful as possible with it.
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