1. The journalistic exemption
Section 32 of the DPA provides an
exemption for journalists to have
to comply with their obligations
under the DPA. The exemption is
limited to circumstances where the
journalist is processing data for
journalistic purposes and with a
view to broadcast or publication of
at least some of the data. The
journalist must also have a
reasonable belief that the story is in
the public interest and that
compliance with the DPA is
incompatible with his or her
investigation and publication. It is
right that the ICO’s guidance
focuses on the exemption and the
concept of the public interest that
permeates every aspect of its
application.
The public interest
In his report1
, Lord Justice Leveson
noted that, ‘the ‘public interest’ is
[…] not a monolithic concept. Nor
is it the particular property of the
press or any other organisation or
sector.’2
The ICO’s guidance stresses
that there is no definitive test of
what is in the public interest
although weight is attached to the
existing industry code definitions
provided by the Independent Press
Standards Organisation (IPSO),
the Office of Communications
(Ofcom) and the BBC’s Editorial
Guidelines. The public interest is
fact sensitive and will differ from
case to case, and each claim will
need to be justified on its own
merits. Comparable material
published in the past may be
relevant but not determinative.
However, undue emphasis is
placed on the ‘general public
interest in freedom of expression,’
and the fact that, ‘The ICO
recognises that there is an inherent
public interest in freedom of
expression itself, regardless of the
specific content of the story.’ The
affirmation of the ‘inherent’ public
interest in the freedom of
expression risks an approach
divergent to the courts. In
Campbell, Baroness Hale noted
that, ‘There are undoubtedly
different types of speech, just as
there are different types of private
information, some of which are
more deserving of protection in a
democratic society than others.’3
Insufficient emphasis on
competing public interests
The point that the ICO’s guidance
shies away from is that there are
competing public interests - all of
which need to be weighed in the
balance on a case by case basis as
articulated by Lord Steyn in Re. S4
:
First the journalist must
acknowledge that neither his or her
right to freedom of expression has
precedence over the data subject’s
right to privacy. The rights under
Articles 8 and 10 are of equal
value. Neither can be regarded as a
‘trump card’ or to have, ‘inherent’
or ‘presumptive authority.’
Second, where the values under
the two articles are in conflict, the
court must conduct a ‘parallel
analysis’. As the then President of
the Family Division Sir Mark
Potter put it, ‘The exercise to be
performed is one of parallel
analysis in which the starting point
is presumptive parity in that
neither Article has precedence over
or ‘trumps’ the other. The exercise
of parallel analysis requires the
court to examine the justification
for interfering with each right and
the issue of proportionality is to be
considered in respect of each. It is
not a mechanical exercise to be
decided upon the basis of rival
generalities. An intense focus upon
the comparative importance of the
specific rights being claimed in the
individual case is necessary before
the ultimate balancing test in terms
of proportionality is carried out.’5
Third, the justifications for
interfering with or restricting each
party’s right must be taken into
account and are likely to include
the following:
(a) Is there a pressing social need
for the restriction of one party’s
right?
(b) Are the reasons for restricting
either party’s right relevant and
sufficient?
(c) Is the restriction to one party’s
right proportionate; being no
wider than is necessary to protect
the other party’s?
(d) How confidential is the
information? The more
confidential it is, the harder it will
be to justify disclosure.
As the ICO’s guidance makes
clear, each case is ‘necessarily fact
sensitive.’6
However, the guidance
also asserts that, ‘It is in the public
interest to have a free and
independent media informing the
public about current events and
providing information of general
interest to the audience.’ This
articulation gets dangerously close
to suggesting that what is
JOURNALISM
In September 2014, the Information
Commissioner’s Office (ICO)
published guidance to editors and
journalists on how to comply with
their obligations under the Data
Protection Act 1998 (DPA). The
long-awaited guide was produced
in response to a recommendation in
the Leveson Report. Leveson’s
Inquiry was criticised for its focus on
the traditional media, rather than the
new and social media that now
dominates journalism and the
consumption of news, and the
same concern extends to the ICO’s
guidance. Magnus Boyd, Partner at
Hill Dickinson, examines the ICO
guidance, the competing interests
surrounding the journalistic
exemption under the DPA, and the
modern media.
15Data Protection Law & Policy - February 2015
Exemptions and competing
interests in a modern media

2. However, the exemption only
covers information processed for
journalism so if an organisation is
also using the same information
for any other purpose, the
exemption cannot apply.
The division between
information gathering for
journalistic purposes as opposed to
lobbying or public relations is
blurring. The relevance of the
ICO’s guidance is likely to decrease
in the ensuing haze.
Conclusion
Emily Bell noted that, ‘Lord Justice
Leveson more than once referred
to the internet as ‘the elephant in
the room.’’10
It looks increasingly
likely that the ICO’s guidelines will
soon be trampled into dust by that
particular elephant as less and less
journalistic activity takes place in
the media organisations for whom
the guidelines were produced.
Magnus Boyd Partner
Hill Dickinson, London
magnus.boyd@hilldickinson.com
1. ‘In discharge of its functions and duties to
promote good practice in areas of public
concern, the Information Commissioner’s Office
should take immediate steps, in consultation
with the industry, to 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. This should be prepared and
implemented within six months from the date of
this Report.’ Part H, Chapter 5, para 2.72 and
page 1113, Chapter 7, Volume 3 of Lord
Justice Leveson’s Report following the Inquiry
into the culture, practices and ethics of the
Press, November 2012.
2. 3.1, Volume 1 Lord Justice Leveson’s Report
following the Inquiry into the culture, practices
and ethics of the Press, November 2012
3. Campbell v. MGN Limited [2004] UKHL 22.
4. Re. S (a child) [2005] UKHL 47.
5. A Local Authority v. W [2005] EWHC 1564
(Fam).
6. Christopher Hutchinson (formerly known as
‘KGM’) v News Group Newspapers and others
[2011] EWCA civ 808, para 26
7. T v. BBC [2007] EWHC 1683 (QB), para 17.
8. Tietosuojavaltuutettu v. Satakunnan
Markkinapörssi Oy and Satamedia Oy ECJ
Case C‑73/07 16 December 2008.
9. Sugar (Deceased) v. BBC [2012] UKSC4.
10. ‘The Leveson inquiry is irrelevant to 21st-
century journalism’, Emily Bell, The Guardian,
28 November 2012.
JOURNALISM
interesting to the public is in the
public interest. It also undermines
the principle that, ‘It is necessary to
evaluate the exercise of that right
[Article 10] not as a matter of
generality, but in the particular
circumstances of the case.’7
Fourth, the ‘ultimate balancing
test’ of proportionality must be
applied to each party’s competing
rights. The ICO’s guidance invokes
the concept of proportionality
without giving it sufficient weight.
The guidance states that, ‘any
consideration of what is in the
Public Interest must involve an
element of proportionality,’ when it
is a fundamental tenet of every
stage of the evaluation process.
New forms of journalism
The ICO’s guidance is also
challenged by the plurality of
modern news gathering. While
there is no definition of journalism
in the DPA, the ICO has rightly
chosen a broad interpretation to
cover the disclosure to the public
of information, opinions or ideas
in any forum or media8
and
including anything published in a
newspaper or magazine or
broadcast on radio or television9
.
Citizen bloggers may be able to
invoke the journalism exemption if
they are posting information or
ideas for public consumption
online, even if they are not
professional journalists and are not
paid to do so. Non-media
organisations may also be able to
invoke the exemption if their
purpose in processing the specific
information is to publish
information, opinions or ideas for
general public consumption: this
will count as a journalistic purpose.
Data Protection Law & Policy - February 201516
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The point
that the ICO’s
guidance
shies away
from is that
there are
competing
public
interests - all
of which
need to be
weighed in
the balance
on a case by
case basis as
articulated by
Lord Steyn in
Re. S