Opinion By Leading Counsel: ‘Disadvantageous’ Costs Regime Violates Human Rights Law

The Section 40-style anti-press clauses in the Data Protection Bill added by the House of Lords cannot lawfully be enacted by Parliament because they are incompatible with directly applicable EU law and would violate the European Convention on Human Rights, according to the opinion of leading counsel.

The  opinion of leading counsel Antony White QC was submitted as part of the News Media Association’s evidence to the Bill committee. The opinion states said the “disadvantageous” regime would violate the European Convention on Human Rights and the EU Charter of Fundamental Rights and was a “punishment” for making a lawful decision to join IPSO rather than IMPRESS.

The opinion unequivocally concludes that Parliament cannot lawfully enact clause 168 and, if it did so, it would be liable to be struck down by the UK courts as incompatible with directly applicable EU law.

“It is a fundamental principle of public law that it is unlawful to punish a person who has done nothing wrong,” it adds. 

The opinion provides a detailed legal analysis of the costs shifting mechanism –  Clause 168 in the Data Protection Bill – and concludes that it is incompatible with the ECHR and the Charter because it would violate freedom of speech rights and discriminate against publishers who refused to join IMPRESS.

If enacted, the provisions would be struck down by English courts or, if tested in the European Court of Human Rights would be found to be in breach of the European Convention on Human Rights, according to the opinion.

The opinion points out the impact of the costs sanctions on data protection claims: “Almost all journalism inevitably concerns some information about living individuals, and therefore involves personal data for the purposes of the data protection legislation. This applies not only to investigative journalism but to all day to day reporting of the courts, local and national government, the police, health service, education, public authorities, businesses, the charitable and voluntary sectors, and any other field of human activity which might be newsworthy.

“The substantive requirements of the data protection legislation (including in particular a statutory duty to comply with a highly technical and restrictive set of data protection principles, and data subject rights to request access to their data and to object to its processing) mean that it will always be possible for individuals who are of interest to the media to formulate claims under that legislation in relation to the publication of any articles about them, or in relation to pre-publication journalistic enquiries about them.

“Indeed it is becoming increasingly common for claimants in media cases to bring claims for breach of the data protection legislation based on the publication of information about them or pre-publication processing of their data. In many cases media defendants can rely on defences available to them under the legislation (in particular the conditional exemption for journalistic processing currently contained in section 32 of the Data Protection Act 1998), but that does not prevent claims being brought which may disrupt journalistic enquiries and will inevitably be costly to defend.”

“There is no doubt that the markedly less favourable costs regime imposed on defendants who are not members of an approved regulator will have a chilling effect on the journalistic activities of publishers who have chosen not to join IMPRESS.

“They will inevitably be less willing to investigate and publish articles about living individuals which might attract claims for breach of the data protection legislation. That chilling effect will have an impact even where a publisher believes it has grounds to defend such a claim, because the effect of clause 168(3) is that it will be unlikely to recover its costs even if the claim fails.”

The opinion concludes that the clause interferes with the right to freedom of expression under the ECHR and the Charter would also be contrary to their prohibitions on discrimination, and he notes a further objection and breach based on the coercion to participate in arbitration.   

The opinion concludes: “The rights to freedom of expression and information, non-discrimination and access to the court now contained in Articles 11, 21 and 47(2) of the Charter have direct effect in UK law, and any legislative provision which is incompatible with those Charter rights is liable to be struck down by the UK courts.

“In my view, for the reasons developed above, the disadvantageous costs regime imposed by clause 168 on media publishers which make the lawful and principled choice to join IPSO and not to join IMPRESS violates these directly effective Charter rights and if enacted clause 168 would be liable to be struck down by the English court.

“Alternatively, the compatibility of the provision could in due course be tested before the ECtHR, and a finding that it violates the Convention rights would in my view be likely to be made.”

The Prime Minister and Culture Secretary have both vowed to overturn the clauses