Presentation to the Winchester Conference on Trust, Risk, Information and the Law 2015 (TRILCon15) on 21st April 2015

1. ‘Is data protection
the new defamation?’
Dr Judith Townend (@jtownend)
Centre for Law and Information Policy, Institute of Advanced
Legal Studies
2nd Winchester Conference on Trust, Risk, Information and
the Law, 21st April 2015

2. Q: Is data protection the new defamation?
“If the headline asks a question, try answering ‘no’”
Andrew Marr, My Trade, 2005, p. 253
Q: In what ways is data protection likely to
affect media practice? Is this comparable
to the impact of defamation law?

3. The reach of defamation
• Libel has been of longstanding concern to
journalists and the media, for its complexity
and high-cost
• The ‘chilling effect’ metaphor used to describe
deterrence of public interest reporting, at a
pre and post publication stage
• Recent reforms supposed to counter – even
‘reverse’ the chilling effect but …

4. The reach of defamation
a. Unclear if new reform through Defamation
Act 2013, and potential reform of costs, will
liberate media and journalism in the way it
was intended
b. Difficult to measure this, owing to lack of
baseline data and very patchy records of
litigation – in and outside court

5. Very little systematically documented
• Barendt et al (1997)
identified that writs and
cases in court were only
the tip of the libel iceberg,
but we don’t even know
much about them!
• Even MoJ was unable to
put together systematic
data for Impact
Assessments on
Defamation Bill and
proposed costs reform
Credit: Uwe Kils (iceberg) / User:Wiska
Bodo (sky), via Wikimedia Commons

6. A few findings
My empirical research project involving online journalists
and bloggers, media lawyers and specialists, established
that between 2008-13:
• Though privacy perceived to be on the rise, concerns
still centred on libel, with more threats and litigation in
this area
• Data protection rarely mentioned as area of primary
concern for journalists and media lawyers (though this
wasn’t a focus of the research) – probably because of
section 32 exemption in Data Protection Act 1998

7. Section 32 exemption
S32, Data Protection Act 1998
Journalism, literature and art
(1) Personal data which are processed only for the special purposes are
exempt from any provision to which this subsection relates if—
(a) the processing is undertaken with a view to the publication by any
person of any journalistic, literary or artistic material,
(b) the data controller reasonably believes that, having regard in
particular to the special importance of the public interest in freedom of
expression, publication would be in the public interest, and
(c) the data controller reasonably believes that, in all the circumstances,
compliance with that provision is incompatible with the special purposes

8. Survey findings I
Online surveys conducted in 2013 of over 200 journalist and
blogger respondents asked about experiences of breach of
privacy/confidence and libel
• The effect of libel was more pronounced than privacy, in
the way it led to substantially changing or abandoning
stories that respondents considered in the public interest
• A group of ‘hyperlocal’ respondents seemed less
reactive/affected by either libel or privacy law than a
‘general’ group of respondents
• Respondents reported fewer privacy than libel claims and a
similar pattern emerged where very few, if any, ended up as
a formal court claim

9. Survey findings II
• A few were simply unaware of the issues; one said, ‘I am also
ignorant of privacy law, so again it does not inhibit me. Generally I
am not dealing with private matters anyway’
• Some knew about privacy law, but it had not arisen as an issue, with
a number of respondents remarking that they had not experienced
this issue, nor were they interested in covering such stories
• For one respondent, the impact of privacy was ‘not technically
because of the law but because of a moral sense of what’s right.
That sort of story isn’t something I’d be interested in feeding’
• A few concerns about data protection were mentioned without
prompt

10. Example comments from surveys
• ‘Libel certainly does [deter] – for the obvious reasons of fear and
ignorance of the law (plus generally the lack of the kind of
journalistic work that would be the defence against a libel claim –
either substantial or Reynolds). Privacy not yet, since most people
aren’t aware of the development of the law here’ (Journalist - paid,
staff position at national news publication, 20 years’ experience)…
• ‘…the most complaints I get regarding online stories is around spent
convictions’ (Journalist - paid, staff position at regional print and
online publication, 23 years’ experience)
• ‘If someone is rich they can bully editors and journalists. It was
always the same, but privacy law has given them a new weapon,
and it’s a very uncertain one as the law is constantly developing’
(Journalist - paid, freelance for national print/online publication/s,
20 years’ experience)

11. Interviews with media law specialists
• One in-house lawyer described how ‘the new trend is to complain about
privacy’, but then added that the publication would get more defamation
complaints despite the current climate …
• Even at a publication where privacy accounted for a significant proportion of
its pre-publication workload ‘in many guises’, the lawyer suggested that most
post-publication complaints ‘curiously enough’ were not privacy complaints
• Privacy was generally interpreted in relation to misuse of private information
and breach of confidence, with little to no mention of data protection law
probably because of the journalistic exemption under S32 of the Data
Protection Act 1998
There was an inconsistency between a. the view held by some interviewees that
privacy is a growing concern and b. the fact that privacy did not seem to lead to
more actions or complaints than defamation. Clearly, for some lawyers, privacy is
[in 2012/13] a more troubling and difficult issue because of its ambiguities in law
and practice, although not necessarily the legal issue that gives rise to the most
actions … yet …

12. 2013 onwards…
Developments in privacy-related law, including data
protection; media reports mention ‘chilling effect’ of data
protection law
• ‘Right to be forgotten’ (or de-listed) developed in CJEU
case C-131/12 Google Spain SL and Google Inc. v
Agencia Española de Protección de Datos (AEPD) and
Mario Costeja González
• Misuse of private information further established as a
specific tort in Google Inc v Vidal-Hall & Ors [2015]
EWCA Civ 311
• Data protection and journalism addressed in Steinmetz
and others v Global Witness Limited

13. UK-specific data protection policy
Leveson (November 2012):
• Recommended amendments to S32 exemption of DPA 1998
• Recommended commencement of custodial sentences for S55 DPA
1998 breaches (and enhanced defence for public interest
journalism); did not give much credence to anticipated ‘chilling
effect’ arising from such a measure
• Recommended ICO should ‘prepare and issue comprehensive good
practice guidelines and advice on appropriate principles and
standards to be observed by the press in the processing of personal
data’
Post-Leveson (2013 - present):
• Government promised consultation on data protection and
journalism after the Leveson recommendations – anyone seen it?
• ICO has published guidance for media though not a Code of
Practice, as it suggested at one point

14. Wider data protection landscape
• Forthcoming European General Data Protection
Regulation and any changes to domestic law – what
will new measures mean for journalism organisations?
• Dealing with right to de-list and media organisations’
interaction with search engines post Google Spain
• Question of flexibility and scope of DPA 1998 Section
32 exemption - with or without Leveson recommended
reforms
• Increasing expectation for media organisations to
effectively manage data protection issues at processing
and publication stage, as indicated in ICO media
guidance

15. Perceptions of data protection creep…
‘…a potential new front in media law’ – the
Economist, March 2014

16. Where next in the UK?
There is only explicit mention of data protection in two manifestos (Lib
Dem/Green), and only one of these specifically deals with journalism and data
protection (Lib Dem)
Liberal Democrat manifesto
• ‘Introduce, after consultation on the detail, the changes to the 1998 Data
Protection Act recommended by Lord Justice Leveson to provide a fairer
balance between personal privacy and the requirements of journalism,
ensuring that the position of investigative journalists is safeguarded’ [p.110]
• ‘Give increased powers and resources for the Information Commissioner and
introduce custodial sentences for egregious breaches of the Data Protection
Act’ [p. 115]
• ‘Retain access to recoverable success fees and insurance premiums … for
both claimant and defendant in publication and data protection claims,
except where one party is significantly better resourced than the other’ [p.
124]
See: http://bit.ly/infolawmanifesto

17. Observations so far
• Data protection law and policy is becoming more
relevant to news organisations and journalists,
even though Google Spain judgment focused on
the role of search engines
• Growing awareness by journalists and media
lawyers, but thus far there has been a relatively
limited impact on publication activity
• Like defamation, a lot of activity will be under the
surface. It will be very tricky to research but it
should be attempted…

18. Emerging research questions
In light of data protection developments discussed,
• Will news organisations increasingly encounter data
protection related complaints? What would be the
impact on publication activity?
• Will news organisations increasingly prioritise data
protection and other privacy-related law as a key area
of legal concern?
• What are the implications for the wider public interest
and receipt of information (as currently protected
under Article 10 of ECHR)?
• What are the implications for subjects of journalism,
including potential claimants and complainants?

19. Q: Is data protection the new defamation?
A: Not yet, no!
But it is becoming (or should be) an area of
increasing concern for news organisations and
journalists, which will need careful scrutiny and
further research, by scholars, lawyers,
journalists and law and policy makers

20. Further reading/contact
• Townend, J. (2014). Online chilling effects in England and Wales.
Internet Policy Review,[online] 3(2). Available at:
http://policyreview.info/articles/analysis/online-chilling-effects-
england-and-wales [Accessed: 20 Apr. 2015]
• Barnett, S. and Townend, J., 2014. ‘And What Good Came of it at
Last?’ Press–Politician Relations Post-Leveson. The Political
Quarterly, 85(2), pp.159–169
• Townend, J., 2013. Closed Data: Defamation and Privacy Disputes in
England and Wales. Journal of Media Law, 5(1), pp.31–44
Judith Townend
Centre for Law and Information Policy
Institute of Advanced Legal Studies
@jtownend / judith.townend@sas.ac.uk
http://bit.ly/infolawcentre