The Data Protection Act 2018 defines how in the UK, data should be retained; if an organisation or individual retains data, relating to a living human being, who can be identified by any reasonable means and that data is easily retrievable, then with certain exceptions, the individual, the “data subject,” should be made aware of the retention of the data.
The ICO has determined, “journalism …. will include most of the day-to-day business of media organisations ….”. It adds journalism, “should be interpreted broadly and covers disclosures to the public of information, opinions or ideas by any means” and continues, journalism, “would cover ….. the entire output of the print and broadcast media.” It emphasises the special importance of the right of freedom of expression and information
With certain exceptions, personal data can only be retained in accordance with the “legitimate interest” of the organisation or person holding the data. If data is retained, outside some exemptions, the “data subject” should be notified:-
The second schedule, part five, paragraph 26 of the Data Protection Act 2018, provides certain exemptions in respect of journalism in that:-
Strictly speaking, Human Rights legislation only applies to the actions of Government but in recent years, particularly in the case of privacy, it has been adopted by the civil courts in that, “Everyone has the right to respect for his/her private and family life, his/her home and his/her correspondence.”
Privacy is not defined in legislation and has to be considered against the actions, position and social status of the person subject of the research, story or article.
There is no statutory definition of “public interest” but the ICO have determined, if a journalist editor or other person believes it is necessary to retain the data for a potential or future news story or feature article, then the retention amounts to, public interest. Reliance on the “special purpose exemption” requires only a reasonable belief of public interest.
Clearly, the public would not purchase newspapers, listen to or watch broadcast news programs if it was not interested in the stories the newspapers or broadcasters provide; the subjective assessment is, “Do I have a reasonable belief Joe or Jane Public would be interested in what has been or might be written or broadcast”
If a data subject believes an organisation is holding data against his or her name, he/she can make what is known as a “subject access request” (SAR) to the organisation or person he/she suspects is holding the data.
The application can be made verbally or in writing and within one month of the request, all information held against the name of the data subject, has to be disclosed, exactly in the form it has been retained. The organisation or person, holding the data, has to disclose details of “processing.”
In the case of journalism, the exemptions mentioned above, allow the media organisation to withhold data or if it chooses to do so, to deny retention of the data. However, data, which is peripheral to the story or feature article, has to be disclosed and then only if it is easily retrievable – as a generalisation journalists’ notebook and data relating to the story would be subject to the exemptions but other data which does not form part of the story should be disclosed. An example would be information recorded in correspondence between the data subject and the news organisation.
Note: To utilise the “special purpose exemption” the journalist or organisation should have documented policies and procedures in place, sufficient to demonstrate accountability and to clarify responsibilities and outline how decisions are made.
There is no statutory right of appeal other than a formal complaint to the ICO – www.ico.org
To ensure absolute compliance and to utilise the journalistic exemptions, various other protocols have to be in place. For detailed advice on how to remain compliant or how to deal with a subject access request or a generalised complaint, contact one of our researchers on +44 (0)1206 711077 or email research@mediaaccess.uk.com