The Information Commissioner’s Office (ICO) has launched a second consultation on the draft journalism code. The Data Protection Act 2018 (DPA) requires the ICO to produce a code of practice that provides practical guidance for organisations and individuals processing personal data for the purposes of journalism.
Following the first consultation which ended in January 2022, the ICO has made substantial changes to the code to make it less complex, including clarifying various aspects of how to apply the journalism exemption and when an expectation of privacy exists.
The journalism exemption
Under Article 85(2) of the UK GDPR, the Secretary of State has a discretion to provide exemptions or derogations from certain provisions of the UK GDPR where processing is carried out for journalistic purposes or for the purpose of academic, artistic, or literary expression. These are known as the "special purposes". The exemptions will apply where the processing is necessary to reconcile the right to protection of personal data with the right to freedom of expression and information.
The scope of the journalism exemption is set out in Part 5, Schedule 2 of the DPA and applies where a journalist:
- uses personal data for journalism;
- acts with the intention or hope of publishing journalistic material;
- reasonably believes publication is in the public interest; and
- reasonably believes that complying with a specific part of data protection law is incompatible with journalism and it must or should be set aside because complying with it disproportionately restricts journalistic activity.
A “reasonable belief” is one a journalist or their editor is able to justify in a reasonable way and is one that a reasonable person could hold in the circumstances. Deciding what is “in the public interest” involves considering the circumstances, balancing arguments for and against, and judging how the public interest is best served overall.
If the exemption applies, the individual may be exempt from complying with the legal requirements that would otherwise apply given they are processing personal data.
Why may this be relevant to you?
This draft code is not only relevant for traditional media organisations and journalists, but instead it applies more broadly to other groups and people, including campaign groups or members of the public who use personal data for journalism.
The draft code is also relevant for those seeking to manage their reputation, as it sets out the requirement that journalists must use personal data that is accurate. There is a one-year limitation period to bring a claim for defamation, which runs from the date of publication. Furthermore, to bring a successful defamation claim, an individual must show the publication has caused or is likely to cause serious harm to their reputation. If a journalist fails to comply with the draft code (when it comes into force) in relation to accuracy, individuals may instead bring a claim for a breach of data protection. This may be a preferable route given that there is a longer limitation period (six years) and no requirement to show serious harm.
The draft code also provides some clarification on the public interest test. It is clear not everything is deemed “in the public interest” but the ICO helpfully sets out scenarios where something may be. This includes: upholding standards of integrity, ensuring justice and fair treatment for all, promoting transparency and accountability, encouraging public understanding and involvement in the democratic process, and securing the best use of public resources.
Photography and filming
Given the importance of images in journalism, alongside its 10 data protection tips for day-today journalism, it would be helpful if the ICO could provide specific supporting guidance relating to photographs and filming. The assessment of whether a particular photograph constitutes personal data can be extremely complex. The draft code does at least provide some welcome detail in relation to when photographs may reveal special category data, for example, an individual’s religion or ethnicity.
Make yourself heard
The ICO is keen to hear a wide range of views on its draft code and has offered to develop topic guides if there is demand, relating to personal data and photography or social media specifically. On consultations such as these, most of the responses are from large media organisations. For balance, it is important that interested parties such as freelance journalists and members of the public take this opportunity to have their say.
Responses are to be submitted to the ICO website by 16 November 2022.