Opinion: DP Bill Costs Sanctions Amendment Would Be Unlawful

The News Media Association has received a legal opinion from leading QC Antony White setting out that the new costs sanctions amendments tabled for this Wednesday’s Report stage vote in the Commons on the Data Protection Bill, would be unlawful to enact, in violation of human rights laws and liable to be struck down in the courts.

The modifications from the former cost sanctions clauses (voted in by the Lords and voted out at Committee stage) make these new proposed amendments even more, not less, objectionable.

The costs sanctions would discriminate against national newspaper publishers and those larger regional publishers such as Newsquest, Johnston Press and Archant, who publish greater numbers of local titles, all of whom pursue a lawful commercial business model and have lawfully chosen, for reasons of principle, not to join a regulator approved under the state-sponsored Royal Charter system.

The amendments provide an exemption for smaller local publishers (those under £100m turnover) which, paradoxically, would only exempt 15% of the local press but would in effect remove the main incentive for IMPRESS publishers to remain in membership of the state-recognised regulator. Some (eg Caerphilly Observer) have already left citing concerns over funding (Max Mosley trust arrangement) and the behaviour of IMPRESS founder and CEO Jonathan Heawood, who was found to have brought his own organisation into disrepute.

Extract from Antony White QC Opinion: [NC20 is the Tom Watson amendment]

“Whilst the three new clauses have minor variations in my view it is clear that each of them is incompatible with Articles 6, 10 and 14 ECHR and Articles 11, 21(1) and 47(2) of the Charter for the reasons explained in my previous Opinion. It follows that if enacted each of these new clauses would be liable to be struck down by the UK courts on the basis that it is inconsistent with directly applicable EU law, and/or liable to be found by the European Court of Human Rights (ECtHR) to be in violation of the ECHR.

“The minor variations between the clauses in my view make them more, rather than less objectionable. For example, NC20 exempts from this punitive costs regime publishers which publish “predominantly in specific regions or localities” – a transparent (and in my view arbitrary and unjustifiable) discrimination against the national press. Similarly NC20 singles out publishers organised on the basis of a lawful commercial model (those which generate profits for their shareholders). These features of the new clauses only serve to make it clearer that the punitive costs regime for which they provide is incompatible with the prohibitions on discrimination contained in Article 14 ECHR and Article 21(1) of the Charter.”