Lords Back Down On Leveson 2

Members of the House of Lords have backed down on their campaign to use the Data Protection Bill as a platform to enact a sweeping Leveson 2-style inquiry into the media, allowing the Bill to receive Royal Assent yesterday just two days before GDPR takes effect.

Under the new legislation, the media will also benefit from significant journalistic protections after further exemptions added during the passage of the Bill, following proposals advocated by Lord Black, Viscount Colville and others with the support of the News Media Association and Media Lawyers Association.

Alongside local and national members and press freedom organisations, the NMA has campaigned vociferously against repeated attempts to use the regime to enact Section 40-style costs sanctions for data protection claims and trigger a broad Leveson 2-style inquiry.

The last session in the House of Lords was devoted yet again to press regulation through debate of Liberal Democrats amendments which advocated triennial reviews of media alternative dispute procedures carried out by the Press Recognition Panel or a judge with regard to the Leveson Inquiry report’s conclusions and recommendations, followed by a report by the Secretary of State to Parliament.

These were ultimately withdrawn, and Baroness Hollins said that she reluctantly accepted the decision of the other place that it does not wish to proceed with and complete a public inquiry.

Instead a final Government’s amendment was added increasing yet further the new duties and powers from previous sessions of the Information Commissioner to draw up a statutory data protection and journalism code, to review the processing of personal data for the purposes of journalism, and to draw up guidance on obtaining redress from media organisations.

The new Act will now also require the Secretary of State or another appropriate person to conduct a triennial review of the “effectiveness of the [non-broadcast] media’s dispute resolution procedures” and for the Culture Secretary to lay a report before Parliament.

The Minister Lord Keen stressed that this is; “not actually a power but simply a duty to report. It is for the Secretary of State to report, and he could do so even without an express statutory power, but this is to underline it.

“We are making it a clear duty, to import transparency into the process. He will essentially be reporting on the metrics available with regard to the take-up of alternative dispute resolution. The effectiveness of dispute resolution will be determined by reference to its take-up and its resolution. It will then be for us—Parliament and the people—to determine in light of those facts whether we consider that further steps have to be taken.

“Let us be absolutely clear: the Bill imports no power on the part of the Secretary of State to compel the media to act in any way on the report that he is putting in place. This is simply a mechanism by which he can ensure that the relevant facts and figures—if I can put it that way—are laid before Parliament at the appropriate time.”

The Minister also offered some comfort on the extension of the Information Commissioner’s powers to conduct the new five yearly reviews of journalistic activities, saying that these were not supposed to give access to prepublication material gathered for journalistic purposes.

Referring to amendments moved by Lord Black and Viscount Colville, he said: “It was acknowledged across the House, during earlier debates that that could not be tolerated given the intrusion it would involve upon press freedom and journalistic preparation.

“The interrelationship between Clauses 174 and 144 is complex, but I again make it clear that the effect is that the Commissioner will not be able to access prepublication journalistic material but will be able to access material that has been processed for the purposes of journalism.”

The Data Protection Act 2018 received the Royal Assent on Wednesday, just two days before the GDPR takes effect tomorrow. The Information Commissioner’s Office has published guidance and resources.