The Information Commissioner’s Office (“ICO”) has recently held that campaign groups may rely on the journalistic exemption under section 32 of the UK’s Data Protection Act 1998. As such, the ICO has held that the journalistic exemption is not limited solely to journalists.
Previous Application of the Journalistic Exemption in Ireland
The Irish Data Protection Commissioner (the “DPC”) has commented on the scope of the journalistic exemption provided by section 22A of the Irish Data Protection Acts 1988 and 2003 in several Annual Reports.
The journalistic exemption under section 22A exempts the processing of personal data for the special purposes of journalism where:
- the processing is undertaken with a view to publication of any journalistic, literary or artistic material;
- the data controller reasonably believes that, having regard to the special importance of the public interest in freedom of expression, publication would be in the public interest; and
- the data controller reasonably believes that, in all the circumstances, compliance with the relevant provision of the DPA is incompatible with the special purposes.
In circumstances where the exemption applies, a data controller will not be required to comply with the following data protection obligations:
- obligations in relation to the collection, processing , keeping, use and disclosure of personal data under section 2;
- obligations in relation to legitimising processing and fair processing of personal data under sections 2A, 2B and 2D;
- rights of data subjects to establish the existence of, access, and require the rectification or erasure of, personal data under sections 3, 4 and 6; and
- rights of data subjects to object to processing likely to cause damage or distress and in relation to automated decision making under sections 6A and 6B.
In his 2005 Annual Report, the DPC commented on the application of the journalistic exemption under section 22A , stating that while the section refers to the ‘reasonable belief’ of the data controller, the DPC, rather than newspaper editors, is the ultimate arbiter of whether the data controller properly balanced the right to privacy and the public interest in disclosure, having regard to the nature of the facts (whether the data subject is a public or private figure), age of the data subject and whether sensitive personal data is involved. The DPC also referred to the decision of the European Court of Human Rights in Von Hannover v Germany (Application No. 59320/00) in which the court held that the German courts had infringed Princess Caroline of Monaco’s rights under Article 8 of the European Convention on Human Rights in refusing to grant injunctions against newspapers taking and publishing photos of her as they did not concern her public functions. The DPC went on to explain that, in his opinion, the effect of the journalistic exemption under section 22A is that publication of personal data is only permitted where the ‘journalistic purposes’ outweigh the data subject’s right to privacy to the extent that non-publication would seriously breach the public’s interest in freedom of expression and in matters involving children under 16, exceptional public interest would be required in order to override the normally paramount interest of the child.
In 2006, the DPC considered a complaint from a public figure in relation to photographs which had been taken and published by journalists of their child. The DPC again referred to the European Convention on Human Rights and the case of Von Hannover v Germany in considering the application of the exemption under section 22A. The DPC also took into account the National Newspaper of Ireland Code of Practice, which states that children should not be identified unless there is a clear public interest in doing so. The DPC ultimately found that the photograph of the child was taken without the consent of the data subject and that the public interest claimed by the data controller newspaper did not outweigh the right to private and family life. The DPC stated that the material published breached the entitlement of a child to interact with its parent in a normal way without their relationship being made the subject of public comment through publication in a newspaper.
The UK ICO recently found that Global Witness, a campaign group which investigates and reports in relation to alleged corruption, could rely on the journalistic exemption under the UK Data Protection Act. The case related to an investigation and report which Global Witness had undertaken in relation to the acquisition of mining rights by BSG Resources Limited. Global Witness had refused data access requests made by individuals associated with BSG Resources Limited on the basis that the journalistic exemption applied.
In making its decision, the ICO accepted that non-media organisations may be able to rely on the exemption if their purpose in processing the specific information is to publish information, opinions or ideas for general public consumption even where the individuals are not professional journalists and their publication forms part of a wider campaign to promote a particular cause.
The ICO emphasised that an organisation can only rely on the exemption where the processing is for a journalistic purpose and for no other purpose, as in this case. The ICO further explained that the data controller does not have to intend to publish the personal data itself, but must show that the personal data is being processed in connection with a story which they aim to publish.
The ICO agreed that publication was reasonably in the public interest and that individuals acting professionally should expect a lower level of privacy than in relation to their private lives, especially when dealing with high profile issues.
Finally, the ICO agreed with Global Witness that disclosure would have a negative effect on its journalistic activities as it would give the data subjects details of the nature and direction of its investigations and stated that Global Witness had satisfied the requirement to show that it was either impossible to comply with the data access requests and still fulfil its journalistic purpose.
Possible Future Application in Ireland
Although the approach previously taken by the DPC may seem somewhat more restrictive than that illustrated by the recent decision of the ICO, at least some of the previous complaints to the DPC are distinguishable on the basis that they related to children, rather than adults who were in the public eye. In addition, the Irish complaints related to personal rather than professional lives. It will be interesting to see if the DPC takes a similar approach to the ICO in relation to the exemption. This may be likely in light of the decision of the Court of Justice in the European Union in Tietosuojavaltuutettu v Satakunnan Markkinapörssi Oy1 which encouraged a broad application of the journalistic exemption by data protection authorities.