Leveson Inquiry

In any reconsideration of the powers of the Information Commissioner (or replacement body), power should be given to that body to determine that membership of a satisfactory regulatory body, which required appropriate governance and transparency standards from its members in relation to compliance with data protection legislation and good practice, should be taken into account when considering whether it is necessary or proportionate to take any steps in relation to a subscriber to that body.

It should be open any subscriber to a recognised regulatory body to rely on the fact of such membership and on the opportunity it provides for the claimant to use a fair, fast and inexpensive arbitration service. It could request the court to encourage the use of that system of arbitration and, equally, to have regard to the availability of the arbitration system when considering claims for costs incurred by a claimant who could have used the arbitration service. On the issue of costs, it should equally be open to a claimant to rely on failure by a newspaper to subscribe to the regulator thereby depriving him or her of access to a fair, fast and inexpensive arbitration service. Where that is the case, in the exercise of its discretion, the court could take the view that, even where the defendant is successful, absent unreasonable or vexatious conduct on the part of the claimant, it would be inappropriate for the claimant to be expected to pay the costs incurred in defending the action.

The exemption in section 32 of the Data Protection Act 1998 should be amended so as to make it available only where: (a) the processing of data is necessary for publication, rather than simply being in fact undertaken with a view to publication; (b) the data controller reasonably believes that the relevant publication would be or is in the public interest, with no special weighting of the balance between the public interest in freedom of expression and in privacy; and (c) objectively, that the likely interference with privacy resulting from the processing of the data is outweighed by the public interest in publication.

The exemption in section 32 of the Data Protection Act 1998 should be narrowed in scope, so that it no longer allows, by itself, for exemption from: (a) the requirement of the first data protection principle to process personal data fairly (except in relation to the provision of information to the data subject under paragraph 2(1)(a) of Part II Schedule 1 to the 1998 Act) and in accordance with statute law; (b) the second data protection principle (personal data to be obtained only for specific purposes and not processed incompatibly with those purposes); (c) the fourth data protection principle (personal data to be accurate and kept up to date); (d) the sixth data protection principle (personal data to be processed in accordance with the rights of individuals under the Act); (e) the eighth data protection principle (restrictions on exporting personal data); and (f) the right of subject access. The recommendation on the removal of the right of subject access from the scope of section 32 is subject to any necessary clarification that the law relating to the protection of journalists' sources is not affected by the Act.

Specific provision should be made to the effect that, in considering the exercise of any of its powers in relation to the media or other publishers, the Information Commissioner's Office must have regard to the application to a data controller of any relevant system of regulation or standards enforcement which is contained in or recognised by statute.

The necessary steps should be taken to bring into force the amendments made to section 55 of the Data Protection Act 1998 by section 77 of the Criminal Justice and Immigration Act 2008 (increase of sentence maxima) to the extent of the maximum specified period; and by section 78 of the 2008 Act (enhanced defence for public interest journalism).

The opportunity should be taken to consider amending the Data Protection Act 1998 formally to reconstitute the Information Commissioner's Office as an Information Commission, led by a Board of Commissioners with suitable expertise drawn from the worlds of regulation, public administration, law and business, and active consideration should be given in that context to the desirability of including on the Board a Commissioner from the media sector.

On the basis that the provisions of s77-78 of the Criminal Justice and Immigration Act 2008 are brought into effect, so that increased sentencing powers are available for breaches of s55 of the Data Protection Act 1998, the Secretary of State for Justice should use the power vested in him by s124(1)(a)(i) of the Coroners and Justice Act 2009 to invite the Sentencing Council of England and Wales to prepare guidelines in relation to data protection offences (including computer misuse).

The Home Office should consider and, if necessary, consult upon: (a) whether paragraph 2(b) of Schedule 1 to the Police and Criminal Evidence Act 1984 (PACE) should be repealed; (b) whether PACE should be amended to provide a definition of the phrase "for the purposes of journalism" in s13(2); and (c) whether s11(3) of PACE should be amended by providing that journalistic material is only held in confidence for the PACE provisions if it is held or has continuously been held since it was first acquired or created subject to an enforceable or lawful undertaking, restriction or obligation.

The Civil Justice Council should consider the level of damages in privacy, breach of confidence and data protection cases, being prepared to take evidence (from the Information Commissioner, the media and others) and thereafter to make recommendations on the appropriate level of damages for distress in such cases. How the matter is then taken forward will ultimately be for the courts to consider.

The Report of the Law Commission on Aggravated, Exemplary and Restitutionary Damages should be adopted in relation to its recommendations that legislation should provide that: (a) aggravated damages should only be awarded to compensate for mental distress and should have no punitive element; (b) exemplary damages should be retained (although re-titled as punitive damages).

The Civil Procedure Rules should be amended to require the court, when considering the appropriate order for costs at the conclusion of proceedings, to take into account the availability of an arbitral system set up by an independent regulator itself recognised by law. The purpose of this recommendation is to provide an important incentive for every publisher to join the new system and encourage those who complain that their rights have been infringed to use it as a speedy, effective and comparatively inexpensive method of resolving disputes.

In the absence of the provision of an approved mechanism for dispute resolution, available through an independent regulator without cost to the complainant, together with an adjustment to the Civil Procedure Rules to require or permit the court take account of the availability of cost free arbitration as an alternative to court proceedings, qualified one way costs shifting should be introduced for defamation, privacy, breach of confidence and similar media related litigation as proposed by Lord Justice Jackson.