The wide definition of personal data in the Information Commissioner’s Office’s (ICO’s) proposed code of practice for journalists is unworkable and poses a “serious danger” to journalism, editors from three major British publications said.
The editors said while they appreciate the difficulty the ICO is in, they believe the draft code “undermines the very basis of journalism and would turn the ICO into a statutory regulator of the media.”
“The fundamental premise on which press freedom rests is that, while individuals have a right to privacy in their home and private lives, what they say and do in the public arena can be reported, subject to a limited range of legal restrictions such as the laws of libel and contempt,” the letter reads.
The editors said these principles are enshrined in the commonly adhered Independent Press Standards Organisation (IPSO) Editors’ Code of Practice, which the ICO draft code turns “on its head.”
The draft statutory code, which is undergoing the second consultation process, said under UK GDPR, journalists “must have a specific lawful reason,” such as legitimate interest or consent, to use personal data.
“Personal data” is defined as “any information about a living and identifiable person, that is, or will be, stored on a digital device or kept in an organised way.”
According to the document, public information such as a job title or opinions about a person can also considered personal data.
Extra care is required regarding “special category data,” which include genetic or biometric data, racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, health, sex life, or sexual orientation.
The code said journalists should consider whether it’s fair to use information such as names and photos, from which special category data can be inferred.
The News Media Association (NMA), which coordinated the joint letter, said the editors argued the draft code’s requirement for publishers to keep records of how public interest decisions are taken is impractical in a busy newsroom.
The editors also said the code was “dismissive of legitimate interests as a lawful reason.”
“Fundamentally journalism is about people. Sometimes it will expose wrongdoing and failure in high places, more often it simply holds a mirror to life; usually to inform, occasionally to entertain or amuse,” the letter reads.
“Journalism of this nature should be covered by legitimate interests, but the Code is dismissive of legitimate interests as a lawful reason. News is, by definition, what is unusual and unexpected, and therefore infinitely varied. A large news website will publish hundreds of stories a day, each requiring decisions about entirely different sets of facts.”
The NMA said the editors had urged the ICO to revise the draft, but argued it doesn’t address the core issue, which is the data protection law in its current form is a “wholly unsuited” set of laws for journalism and was “never intended” for this purpose.
The editors said the code poses a “serious danger” to all forms of journalism, exposing them to “expensive and time-consuming legal challenge.”
Citing Raab’s statement saying the government’s new Bill of Rights will strengthen the protection of free speech, they called on the ministers to exempt journalism from data protection law like “other democracies” have done.
“Our codes do not create new law, but simply explain what is required under the existing law—indeed, similar codes already exist around protecting children’s data online or sharing data,” said Information Commissioner John Edwards. “There is nothing in our code that constitutes a limit on the freedom of the press.”
“It is misdirected and disingenuous to criticise a draft code that is still under review, as part of our detailed and thorough consultation process,” he added.
