Release of new draft UK data protection legislation is imminent and it may have a significant impact on professional journalists and their readers, depending on the balances it strikes.



The astonishing growth in the sophistication with which artificial intelligence can search, sift, generate, distribute and remember information means that the traces of personal information we leave almost everywhere are being collected and used more. Some of the uses can have serious impact on individuals – on education, careers, finances and relationships.

Updating the 1998 UK Data Protection Act is necessary because in May 2018 a sweeping new EU general data protection regulation takes effect. Any Brexit in 2019 notwithstanding, consistency with EU standards matters for non-EU countries because without it massive amounts of economic and other activity involving flows of personal information to and from the EU may stop or slow.

For five years I was privacy commissioner in my home state of Victoria, Australia, a role similar to the information commissioner in the UK and familiar to Europeans and Canadians. (The US has no equivalent yet.)

Issues about the power, fluidity and longevity of digital data in people’s lives routinely crossed my desk, though in a government context not a journalistic one.

So I read the UK government’s statement of intent last month with particular interest, especially in whether the longstanding exemption for journalism will change.

Under UK law now, if personal data is processed only for journalism, with a view to publication in the public interest, and compliance with the data protection principles is incompatible, journalists are exempt from rules which otherwise would make journalism unworkable.

Similar exemptions are common in these laws worldwide. They recognise the role journalism traditionally plays in democratic societies to inform electors; hold power to account; lubricate commerce; nourish culture. Media do all this, imperfectly and sometimes hypocritically, while being in commerce themselves. It works untidily, but it works and there is no substitute.

The government’s statement says it “intends broadly to replicate” the exemption, but will broaden the powers of the information commissioner to enforce it. We must wait and see what that means.

One of the most difficult aspects of the readers’ editor’s responsibilities is to handle requests from people who want material that has been lawfully published about them to be deleted from the Guardian’s vast, ever-expanding digital archive.

A growing number of people believe they have a right to edit their past. Legally, there is no absolute “right to be forgotten”. Nevertheless, such requests require careful attention. They can involve delicate balances of public and private interests.

Guardian policy starts from the presumption that its archive should be preserved. Change requires a showing of exceptional circumstances. The archives of newspapers are part of the public record, a society’s collective memory, and it is in the public interest that their integrity be maintained. Apart from their daily use, over long timeframes they prove an essential resource for all types of scholars whose works remind us, explain us, improve us.

I believe that if journalism is to stay exempt from statutory regulation, as it should, it must continue to develop fair methods of handling requests to amend its archives.

In print journalism, where it is impossible to change the inked information in yellowing paper files, one attitude is that the digital archive is similarly immutable. This can lead to injustice. Some cases do require that a past piece of journalism be amended, perhaps anonymised, or, ever so rarely, deleted. But any of those actions should be recorded. “Invisible mending” leads to confusion short-term, and long-term to nightmarish versions of Winston Smith’s job re-writing history in Nineteen Eighty-Four.

Experience in this branch of law and statutory regulation offers many lessons, including:

• Primacy of accuracy Everyone has an obligation to try to record personal information accurately. In digital form it multiplies and spreads despite efforts to contain it.

• Power of inference Information is protean, in wonderful but also sometimes hazardous ways. In different contexts the same piece of information can take on radically different meanings. One consequence is that everyone has to cultivate an awareness of the temptation and the power of inference.

• Absolutely no absolutes So much is being transformed by digital technologies, in all fields, it is necessary always to be open to change and adaptation of practices that seemed in the analogue era to be settled.

• Artificial intelligence lacks knowingness At least for now, it is not tempered by mercy, empathy, scepticism, forbearance, senses of irony and humour, and other human attributes that can be necessary in decision-making.

One of the likely reforms to data protection law is an opportunity to appeal to a human against decisions made by a machine.