Comment In the middle of the Major years (back in the 1990s), David Mellor, then a Cabinet minister (whose fascination for female toes was discussed by the tabloids, in the "public interest" of course) famously said that the press were drinking at "the last chance saloon". Fifteen years of hard drinking later, the recent events into phone hacking have shown that some journalists and editors were too drunk to notice.

In this fast-moving field, there are four data protection issues to watch out for. These are:

The hacking issue is not limited to the News of the World ;

; The absence of a custodial sentence in section 55;

The Courts interpretation of Special Purpose exemption; and

The role of the Press Complaints Commission Code of Practice.

For good measure, I suggest a solution to this mess which does not mean the government are controlling the press: we need a free press, but not this free perhaps.

The issue is not limited to the News of the World

The Information Commissioner has documented in his What Price Privacy? series that the practice of hacking is likely to be endemic. He reported that the invoice trail indicated that the few private investigators he had investigated had delivered "services" to the following tabloid newspapers:

Daily/Sunday Mail had paid for 1,218 investigations to be undertaken by private investigators on behalf of up to 91 different journalists. The Daily/Sunday Mirror ordered 824 investigations on behalf of up to 70 journalists. The Sunday People ordered 802 investigations involving up to 50 journalists, and the News of the World (the paper of current interest) had ordered 228 transactions of up to 33 journalists.

The evidence above suggests there were large number of invasions of privacy by hacking and the News of the World are not the only culprits. Any ministerial attempt to limit any inquiry to the Murdoch empire is an attempt to limit the scope of any inquiry.

The absence of a custodial sentence at section 55

The Labour government had greeted the What Price Privacy reports by conceding the need for custodial sentences. However in 2008, it backed down over its plans to introduce jail sentences of up to two years for those who obtained personal data by underhand methods. Although, it tabled two amendments to the Criminal Justice and Immigration Act 2008 signifying the custodial offence was coming; the actual implementation of the custodial sentence needed the Minister to exercise his powers and lay an order before Parliament.

As there was no use of these powers, the effect of the amendments was to maintain the status quo of the current Section 55 offence and further delay any custodial element. The changes also created a new defence for journalists to the Section 55 offence which is operational.

Eighteen months of New Labour inaction followed. In the autumn of 2009, the Ministry of Justice tabled a consultation document on "The knowing or reckless misuse of personal data". This consultation ended in January 2009 and since the General Election was looming, the product of that consultation was quietly dropped. The reason for this can be found in my blog of 12th Feb 2010, where I wrote:

"The sticking point (of commencing the custodial offence) I suspect is the application of the offence to the special purposes and in particular journalism. It has dawned on the government that embracing legislation which could imprison journalists has very little to commend it when a general election is looming. One can also imagine the fuss if this measure was actually passed by a Parliament full of MPs whose credibility is about zero, thanks the expenses scandal."

However, back to the main point. When ex-Labour Ministers or MPs claim invasion of privacy on our TV screens in the next few days, remember: they had their chance to do something about it, and blew it.

The courts' interpretation of Special Purpose exemption

The courts have changed how Section 32 works in the way Parliament did not intend. Back in 1997, Lord Wakenham for the Press Complaints Commission came to an agreement with the government of the day in Section 32 that was endorsed by Parliament. This was that there was an exemption for the Press (except the 7th Principle) up to the point of publication.

Lord Phillips (para 127 and 128 of Naomi Campbell*) has made an interpretation of section 32 which effectively ignores this agreement which said the exemption only applied prior to publication, to one that continues after the time of publication.

The result is that the Information Commissioner has been denuded of his few powers in relation to the press. Whether he should do is another matter, but at the moment the government has not made any attempt to address the Court's finding – mainly one suspects of fear of antagonising the press.

The role of the Press Complaints Commission Code of Practice

The Press Complaints Commission Code of Practice has already been identified as being relevant, but the Code is not a statutory Code. For instance, Section 32(3) in relation to the Special Purpose states:



In considering for the Special Purposes "... whether the belief of a data controller that publication would be in the public interest was or is a reasonable one, regard may be had to his compliance with any code of practice which: (a) is relevant to the publication in question, and

(b) is designated by the Secretary of State by order for the purposes of this subsection".

The Press Complaints Commission Code of Practice has been identified in the "The Data Protection (Designated Codes of Practice) (No. 2) Order 2000" as being relevant. However, if Section 32, following Lord Philips interpretation that S.32 applies all the time, then the Code has become irrelevant to data protection compliance as there is nothing really to have regard for! The exemption applies: full stop.

My solution to this mess

1. Make the Press Complaints Code of Practice a statutory Code of Practice (similar to the data sharing Code of Practice) where failure to comply with the Code's terms must be taken into account by the courts and Commissioner when looking at a problem. This will add "bite" to the compensation provisions in Section 13 where data subjects can take action on grounds of distress alone. Note that the change ensures that a newspaper has to take the Code of Practice seriously. Make the Press Complaints Code of Practice a statutory Code of Practice (similar to the data sharing Code of Practice) where failure to comply with the Code's terms must be taken into account by the courts and Commissioner when looking at a problem. This will add "bite" to the compensation provisions in Section 13 where data subjects can take action on grounds of distress alone. Note that the change ensures that a newspaper has to take the Code of Practice seriously. 2. Reverse Lord Phillip's remarks in Campbell so the consensus agreed in 1998 is restored: namely, that the S.32 exemption applies only up to the point of publication. This would give the Commissioner back his powers (Special Information/Enforcement Notice), AFTER publication. You would also have Monetary Penalty Notices in relation to security breaches by the press – you know the accidental disclosures that happen on Twitter. 3. Make sure the Commissioner can call on public funds if he "takes on" the press (or assists data subjects) in the courts if there is an issue of "public interest" to resolve. If you don't have this, he will not be able to fund the legal case. 4. Give the Commissioner the power to serve a Notice that can require changes to the Press Complaints Commission's Code of Practice. Any such change to be subject to the usual notice procedures (eg, to the Tribunal), so that differences in view can be resolved by a judicial process, having regard to the importance of freedom of expression.

The Duke of Wellington is famously supposed to have said "Publish and be damned" in 1824 when a publisher threatened to reveal details of a tryst. Nearly 200 years later, there is still a lot of "damning" yet to be done. ®

* Lord Phillip’s comments at Para 128 of [2002] EWCA 1373: Campbell v Mirror Group Newspapers.

This story originally appeared at HAWKTALK, the blog of Amberhawk Training Ltd.