Lord Justice Leveson’s recommendations for tougher data protection laws could have a “chilling effect” on investigative journalism, the Information Commissioner has warned.
The Leveson Report suggested that important exemptions in the Data Protection Act for journalists pursuing stories in the public interest should be scrapped.
In his official response to the report Christopher Graham, the Information Commissioner, said there are “legitimate concerns” about the impact Lord Justice Leveson’s recommendations could have on journalism.
He also warned that his recommendations would effectively make the Information Commissioner a “mainstream statutory regulator”, a move which he is “not actively seeking”.
He said: “Lord Justice Leveson’s recommendations on reforming the Data Protection Act would move the ICO [Information Commissioner’s Office] closer to becoming a mainstream statutory regulator of the press. The significance of the proposed changes should not be underestimated.
“The ICO is not actively seeking a wider role in relation to the regulation of the press. If the ICO is to do more in relation to the press it is likely to be able to do less in areas of even greater public concern.”
The Information Commissioner raised concerns that the proposed reforms to data protection laws would allow the subjects of stories access to information which journalists hold about them. Experts fear this could lead to anonymous sources being identified.
Mr Graham said: “We acknowledge the importance of ensuring that data protection legislation does not undermine the work of the press and implications it can have for freedom of expression.
“The area of subject access is particularly problematic in that there are legitimate concerns about the ‘chilling effect’ Lord Justice Leveson’s proposal might have on investigative journalism.
“This area will need very careful consideration. This again is a matter of balance of interests and is ultimately a matter for Parliament.”
Lord Justice Leveson has also suggested that journalists should only be allowed to handle personal information where it is “necessary for publication”, rather than the current requirement of obtaining it with a “view for publication”.
Experts have warned that the reforms would put journalists in breach of the law if they obtained personal data in the course of their research which did not form the basis of a story which was later printed.
The Information Commissioner says while there is “merit” in the recommendation, it could be superseded by European data protection laws being drafted by the European Parliament and Council. He said the government should consider whether it is “sensible” and “practicable” to introduce legislative changes before European regulations have been adopted.
Angie Bray, a Conservative member of the culture, media and sport select committee, said: “My concern is that we are going to make it that much harder for journalists to set out on an investigation.
“They have to predict so much about where it is going to end up before they start that it will be too easy for them to decide not to start out at all. In a democratic society we need journalists to ensure we get to the bottom of things.”
Niri Shan, head of media law at the London-based firm Taylor Wessing, said: “If these changes come in I think that the Information Commissioner will effectively be policing the press. Further down the line newspapers could be subject to requests that could put confidential sources at risk of being identified.”