“The best journalism works within the law, although it often tests the boundaries”

By Christopher Graham, Information Commissioner

“News is what somebody doesn’t want you to print,” said William Randolph Hearst, the great American newspaper publisher. “All the rest is advertising,” he added.

But when somebody doesn’t want something printed, what are their privacy rights? What does the law say about press freedom and the right of free expression? How does the law balance the competing rights and obligations? Are data protection and journalism opposites that don’t mix, like oil and water? Or are they in fact complementary?

Twenty years a broadcast journalist and another twenty years as a communications regulator of one sort or another, I’d say that the best journalism works within the law, although it often tests the boundaries.

The guidance we are publishing today, Data Protection: a guide for the media is a thoroughly practical tool, designed to help those who work in the news media, at all levels, to understand their obligations under the Data Protection Act. It also seeks to reassure citizens as to their right to privacy in appropriate circumstances.

Whether addressing staff reporters or freelances, desk editors or editors-in-chief, this guidance sets out what the law is – not what some might like it to be (either more or less restrictive of the freedom of the press). The ICO is publishing this guidance now in the light of the considerable confusion, highlighted in recent high-profile court cases and at the Leveson inquiry, around what data protection law says about journalism and the media. Indeed, the publication of this authoritative guidance from the Information Commissioner is itself a response to one of the Leveson recommendations.

Press freedom is not, and never has been, an absolute. Editors have always had to balance the competing rights of individual privacy and the right to know. Journalistic ethics and the codes within which the media are regulated (and indeed regulate themselves) speak of finding the right balance – deciding where the public interest is to be found, given the circumstances of each situation. More legalistically, it’s about balancing the rights, under Human Rights law, between Article 8 (the right to enjoy a private life) and Article 10 (the right of free expression). Neither of these can automatically trump the other. It depends on the facts of each case.

We’ve produced today’s guidance after a period of thorough consultation, both with the media industry and through a formal public consultation. We’ve held workshops with journalists and media executives, and also with civil society organisations and campaigners.

Alongside today’s publication of the ICO guidance we’re also publishing our response to the consultation, as well as advice to the public, should they feel the media have not handled their information correctly. We’ve also produced a quick guide for the media.

Now some words of caution. In some situations, decisions about what to publish and what not to publish will be finely balanced. In these cases, it is not a valid argument simply to assert the overriding public interest in a free press. Secondly, from time to time, no doubt, public figures with deep pockets, and perhaps dark secrets too, may seek to use data protection law to keep stories out of the papers when in fact the public interest favours publication. But the rules should not be interpreted to the disadvantage of private citizens in general just because the law can be a costly overhead for media companies.

Today’s guidance will not satisfy everybody. Leveson himself recommended changes to the Data Protection Act to strengthen the privacy rights of individuals vis-à-vis journalists. Media groups have maintained that even the current law is potentially a threat to press freedom.

But we must also not allow the climate in which the final form of this guidance is unveiled to blunt its impact or negate its utility. This publication shouldn’t be taken as a commentary on recent court cases and ongoing investigations. It isn’t a contribution to debates on the proposed EU data protection Regulation, now grinding its way through the Brussels legislative machine. And it isn’t a reaction to the recent ‘Right to be Forgotten’ ruling of the EU Court of Justice in the Spanish Google case.

I have warned previously about an overreaction to imagined or perceived threats to press freedom getting in the way of clear headed decision making around tricky editorial challenges. Similarly, I am very much aware that publishing this guidance in the months running up to a General Election could tempt both media and politicians to play party games with what is an honest attempt to describe how the public interest should be interpreted and upheld.

Taking due account of this authoritative guidance, the UK media will continue to be among the most free and fearless in the world, investigating wrong-doing, breaking stories (whether significant or silly), holding the powerful to account, shining the light of truth into dark places, but always respecting what really is nobody’s else’s business but the private citizen’s.

Christopher GrahamChristopher Graham, Information Commissioner, has a range of responsibilities under the Freedom of Information Act 2000, the Data Protection Act 1998 and related laws.

Last updated 04/09/2014 11:45

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One Response to “The best journalism works within the law, although it often tests the boundaries”

  1. With the next general election looming I think this post brings about a very current subject. As a recent NCTJ graduate media law was at the forefront of our study. For a journalist, it can be said that being assigned to a major political campaign is just about as exciting as being sent to cover a war. News is always being created; adrenaline is always flowing. Stories will almost always make the front page. A political journalist can be said be said to be part of a privileged gang – a witness to history. Ideally, they are giving constituents -those who read or hear or see them – the knowledge they need to cast an informed vote. That’s the romanticised edition. Reality is often less glorious: nineteen- hour workdays and seven-day workweeks; searching for facts in candidates’ speeches and looking for truth in the fusillade of exaggerated pledges. The only constant is the public’s need for information. However laborious or unsavoury the job may become, a journalist is still compelled to let their audience know what’s going on, and to do so honestly and thoroughly. Political news gathering differs from much else in journalism because of the active tension endured between reporters and those they cover. This is why there are often ethical problems related to political journalism and the dispute over Royal Charters implies we have a long way to go in some areas of political journalism in order to determine even the most basic respect for ethical values.

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