
db2d66e42b450fd20173427f67c1e243.ppt
- Количество слайдов: 28
DATA PROTECTION AND FREEDOM OF INFORMATION Important legislation relating to the storage and disclosure of information 18/03/2018 1
DATA PROTECTION ACT 1998 • Act applies to specific activity of storing data NOT to any particular organisation • Also applies to disclosure of information held. • Provides another possible route for protection of privacy • Enforced by Information Commissioner • New General Data Protection Regulation in 2018 18/03/2018 2
STORAGE OF DATA must comply with 8 data protection principles • • Fairly & lawfully processed Processed for limited purposes Adequate, relevant & not excessive Accurate Not kept longer than necessary Processed in accordance with subject’s rights Secure Not transferred to countries without adequate protection 18/03/2018 3
What is covered? • Information that is stored manually as well as electronically • Definition of Data very wide • Myths about use • ‘nowhere does the act place blanket bars on the disclosure of information’ • Overuse & misuse - organisations may use the DP legislation to avoid providing information. 18/03/2018 4
Examples of wrongful disclosure • Croyden Council fined £ 100, 000 – bag containing confidential data stolen from public house • UK Nursing & Midwifery Council received £ 150, 000 penalty. Lost 3 DVDs related to a misconduct hearing. Contained confidential information. Had no policy for handling of such data e. g. re encryption. • Department of Justice Northern Ireland fined £ 185, 000 – sale of filing cabinet 18/03/2018 5 containing personal data
JANUARY 2015 • ‘Office’ – data breach exposed more than 1 million customer details – ICO orders an improvement to DP practices • Staysure. co. uk Limited, an online insurance company, fined over £ 175, 000 after IT security failings allowed hackers to access customer records. 18/03/2018 6
2016 • Information Commissioner fined Prodial Ltd £ 350, 000 for making over 46 million unsolicited marketing calls – one of the worst cases ever • Issued 3 enforcement notices against a network of companies – Advanced VOIP Ltd, Money Help Marketing Ltd & Preferred pensions LLP. Face legal action if breach 3/18/2018 7 notice.
Act affects media in 2 ways • A. when a journalist acquires information to be put into a database the principles apply & whenever information is extracted and published etc = disclosure And • B. as journalists process information they may have problems complying with the privacy rights of anyone about whom they hold information 18/03/2018 8
Some cases • Naomi Campbell – claim under DP Act not discussed • Douglas & Zeta-Jones (£ 50 each for breach) – ‘Hello’ tried to use exemption re photos but this rejected as no real Public Interest. • Murray v Big Pictures (photos on CD Rom) • Stone v SE Coast Strategic Health Auth. 18/03/2018 9
Journalistic Material (s. 32) • Exemptions from: • The data protection principles (apart from security) • Data subject access rights • Rights of data subjects to prevent data processing • Rights of subjects to correct inaccuracies • Rights concerning automated decision making 18/03/2018 10
3 conditions must be met • 1. Processing is undertaken with a view to publication of any journalistic, literary or artistic material (undefined in Act) • 2. The Data Controller believes that having regard to the special importance of freedom of expression, publication is in the public interest • 3. Data Controller reasonably believes that in all the circumstances compliance with provision in question is incompatible with the purposes of journalism. 18/03/2018 11
Unlawfully obtaining data • It is an offence to unlawfully obtain data • Criminal Justice and Immigration Act 2008 contains a new defence for journalists if they can show they acted with a view to publication of journalistic, literary or artistic material & in the reasonable belief that it was in the public interest to obtain/disclose information. NOT IN FORCE YET 18/03/2018 12
Almost Finally…. • Court can take into account any relevant code of practice • Note powers of Information Commissioner • Appeal from IC to Information Tribunal. 18/03/2018 13
…And Finally • Note the recommendations in the Leveson Report to make it easier for police to seize material from journalists gained through their work. • Proposal is to still require approval from judge but would no longer need to show that they had tried to acquire material elsewhere first. 18/03/2018 14
FREEDOM OF INFORMATION • The dawning of a new age? • Working of Act monitored by Information Commissioner – see website for details of latest decisions. • FOI Act perceived as great benefit to investigative journalism. Advice on how to proceed on ICO site and also Mc. Nae’s online. 18/03/2018 15
TRANSPARENCY & EXPOSURE • ‘There is not a crime, there is not a dodge, there is not a trick, there is not a swindle which does not live by secrecy. Get these things out in the open, describe them, attack them, ridicule them in the press and sooner or later public opinion will sweep them away’ Joseph Pulitzer – newspaper owner 18/03/2018 16
Information discovered as a result of FOI • In 2012 43, 586, 400 fake pound coins in circulation – check your change! • Foreign Office spent £ 10, 000 to carry out ‘essential maintenance’ on Albert the Snake – he was re-stuffed. • MPs expenses/Immigration figures/A & E response times • MOT car failures – the good cars vs. the bad cars 18/03/2018 17
AN IMPORTANT TOOL. . • . . for journalists & anyone else wanting official information • FOI and Environmental Regulations came into force 1 st. Jan 2005 • Well over 100, 000 public bodies affected • Gives general right of access to all types of recorded information held by public bodies, sets out the exemptions & obligations 18/03/2018 18
THE BASIC FOI RIGHT • S 1(1) (a) - right to be informed in writing whether public authority holds the information requested • S 1 (1) (b) – right to have that information communicated to the requester • You do not have to give reason for request. 18/03/2018 19
SCOPE OF THE RIGHT • Request for information widely defined (s. 8) • Limit to resources that must be expended (s. 12) [Government would like to restrict access further – see CFOI site] • Duty to advise & assist requesters (s. 16 & s. 45 Code of Practice) 18/03/2018 20
EXEMPTIONS 1 • 23 EXEMPTIONS - 2 groups • a. Those that apply to a whole category of information e. g. information re investigations & proceedings conducted by public authority, court records, trade secrets If asked for this type of information then body can claim exemption without having to show that harm will result from disclosure 18/03/2018 21
EXEMPTIONS & PUBLIC INTEREST • b. those that are subject to prejudice test e. g. Where disclosure would prejudice or be likely to prejudice the interests of the UK or the prevention or detection of crime • public interest test comes into play • Is it better to disclose or not to disclose? • Information Commissioner sets out guidelines - but see VETO provision! 18/03/2018 22
THE VETO – ‘a constitutional aberration’ • Included in Act as a last resort • Allows either prime minister or other minister to veto information • Instances of use: • Iraq War papers • Prince Charles letters – SC rules in favour of disclosure 26. 03. 15 - See SC ruling. • High Speed Rail 2 report 18/03/2018 23
Freedom of information in Practice • • • In 2009: Ministry of Justice 17, 822 requests Information disclosed in full – 59% Information withheld in full – 23% Exemption used most often = personal data (s. 40) ( 3 times as often as nearest other) • Cases can drag on a long time - See Sugar v BBC 18/03/2018 24
Policy formulation & ministerial communication (s. 35) • • Interests protected: ‘thinking space’ Ministerial collective responsibility Uninhibited discussion between ministers in a formal setting – described as ‘essential’ by Min of Justice • D f ES v IC & Evening Standard (UKIT EA/2006/0006) • Cabinet Office v IC (UKIT EA/2010/0031) ( Westland Affair and Heseltine resignation 1986) 18/03/2018 25
Private Information about individuals (s. 40) • • Interests protected: Privacy Unfair release of personal information Sensitive personal data • Release can be justified where there is a pressing social need • House of Commons v IC (EA/2007/0060 & [2008] EWHC 1084 (Admin) – MPs expenses 18/03/2018 26
Legally privileged information(s. 42) • Interests protected: • Confidentiality of communications between lawyer & client • Administration of justice • Ability of clients to seek legal advice • BERR v O’Brien & ICO [2009] EWHC 164 • Disclosure may serve public interest where there has been wrongdoing 18/03/2018 27
CONSEQUENCES FOR JOURNALISTS? • The end of exclusives? The response will be publicly available so others may use it. • Increased self-censorship by public bodies? Fewer minutes so that any paper trail will be reduced & information about decisions will not be available – see recent story about Downing Street emails • Putting a price on information – FOI has created a bureaucracy that costs money - see above. • The emergence of FOI specialists - will it divide journalists between the processors (‘churnalists’) and ‘proper’ investigative journalists? 18/03/2018 28