Tag Archives: Information Commissioner

ICO consulting on possible data protection code of practice for the press

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ICO consultation doc data protection

Last week the Information Commissioner’s Office launched a “short public consultation” on proposals for a code of practice for the press in the Data Protection Act.

According to the ICO website this follows a recommendation from Lord Justice Leveson for the ICO to “prepare and issue comprehensive good practice guidelines and advice on appropriate principles and standards to be observed by the press in the processing of personal data”.

The consultation was sent out last week, and closes on Friday 15 March. The ICO website states:

This short public consultation on the likely scope and content of the proposed ICO code of practice is an important first step in ensuring our stakeholders have an opportunity to let us know their views and engage in constructive dialogue to develop a common understanding of how data protection legislation applies to the media. This will be followed by a full public consultation on the code itself.

In the consultation document the ICO adds:

The code will not contain any new legal duties – the purpose of such codes is to promote good practice and observance of the requirements of the Data Protection Act by data controllers. Depending upon decisions by the government about possible reform of the law, this guidance may require further review. However, we accept that it is important to produce guidance now, as recommended by Lord Justice Leveson.

Hatip: International Forum for Responsible Media blog.

EU taking the biscuit? UK responds to new cookie legislation

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Since the warning from the Information Commissioner this week that websites in the UK need to ‘wake up’ to new EU legislation on accessing information on user’s computers, many questions have been raised, but when they will be answered remains unclear.

Under the new legislation, which will come into force in May this year in an amendment to the EU’s Privacy and Electronic Communications Directive, websites will be required to obtain consent from visitors in order to store on and retrieve usage information from their computers such as cookies, which enable sites to remember users’ preferences.

The Internet Advertising Bureau responded to Christopher Graham’s announcement with its concerns, saying the new rules are “potentially detrimental to consumers, business and the UK digital economy”. The big question is how the EU directive will be interpreted into UK law – the implementation of which is down to the Department of Culture, Media and Sport.

According to Outlaw.com, the news site for law firm Pinsent Masons, the DCMS is working on a browser-based solution “to find a way to enhance browser settings so that they can obtain the necessary consent to meet the Directive’s standards”. But Rosemary Jay, a partner at Pinsent Masons and head of information law practice, told Journalism.co.uk this would only work for new downloads of browsers.

One of the things about browser settings, being talked about by the government, is even if you amend browsers it will only do it for new browsers and lots of people that are running browsers that are 10 years old, browsers that are really small. If you do it by re-designing browsers so they can very easily and quickly offer you cookie choices it’s only going to apply when people buy or download a new browser. There are a lot of questions around that. Equally if you say you’ve got to have a pop-up on the front page, or an icon, there are so many cookies that people get all the time for all kinds of peripheral things. Just in a behavioural advertising scenario you could get four cookies dropped during the course of someone delivering just a little bit of video.

Meanwhile TechCrunch’s Mike Butcher raises his concerns about the impact of the rules on EU start-ups.

So, imagine a world where, after 25 May when the law kicks in, your startup has to explicitly make pop-up windows and dialogue boxes appear asking for a user’s permission to gather their data. If enforced his law will kill off the European startup industry stone dead, handing the entire sector to other markets and companies, and largely those in the US.

But while debate rages on about how this law will be implemented in the UK and ultimately therefore the likely implications for users and websites, the BBC’s Rory Cellan Jones calls for some calm while the details are ironed out.

It may, however, be time for everyone to calm down about cookies. EU governments still have not worked out just how the directive will be implemented in domestic law, and what form “consent” to cookies will have to take. In the UK, the internet advertising industry appears confident that reminding people that their browser settings allow them to block cookies will be enough, while the Information Commissioner’s Office seems to think that they will need to do more.

My suspicion is that consumers will actually notice very little after 25 May, and the definition of consent will be pretty vague. But at least the publicity now being given to this “cookie madness” may alert a few more people to the ways in which their web behaviour is tracked. Then we will find out just how many people really care about their online privacy.

Guardian.co.uk: Committee to hear police evidence for NOTW phone hacking inquiry

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The Guardian reports that the ‘fallout’ from its revelations in July, about News of the World’s use of phone hacking, will continue.

Next week the Commons culture, media and sport select committee will hear evidence from the information commissioner as well as from John Yates, assistant commissioner at the Metropolitan Police, and detective chief superintendent Philip Williams.

Full story at this link…

Who will the PCC question at NOTW if it re-opens investigation into phone hacking?

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Will the PCC question News of the World’s Stuart Kuttner, who yesterday stepped down as the paper’s managing director, if it re-opens the investigation into phone hacking?

[Update 10.07.09: News International said the ‘departure of managing editor Stuart Kuttner has no connection whatsoever’ with events referred to in a statement]

In evidence given to the House of Commons culture select committee in April, Nick Davies criticised the PCC for failing to hold the News of the World to account on charges of phone hacking:

Mr Davies: If you say to [Andy] Coulson, “Come and give evidence even though you are no longer an editor” and if he says, “No” then that is an interesting tactical failure on his part. It is not just the editor of the paper; what about the managing editor? Why not call Stuart Kuttner, the managing editor of the News of the World, who has been there for years and who has a special responsibility for contracts and money? Why not call him to give evidence? There was a real will on the part of the PCC to avoid uncovering the truth about phone hacking.”

The PCC is now looking at the case again in light of Nick Davies’ exclusive report for the Guardian and could re-open the investigation. So who will they question?

Stuart Kuttner, as Davies suggested? “Kuttner will remain at the News of the World part time to work on special projects for the tabloid, including its Sarah’s Law campaign,” the Guardian reported yesterday.

The PCC decided not to question former News of the World editor Andy Coulson (as we write, he is still the Conservative Party’s communications director) for its 2007 inquiry, citing that he was not longer ‘answerable to the PCC’.  But would they question Kuttner, in his new part-time role?

In 2007 the PCC stated in its report on subterfuge and newsgathering:

“Despite Mr Myler’s [new News of the World editor] appointment, the question arose whether the PCC should ask Mr Coulson to give an account of what had gone wrong. The PCC decided not to do so. Given that the PCC does not – and should not – have statutory powers of investigation and prosecution, there could be no question of trying to duplicate the lengthy police investigation. Furthermore, Mr Coulson was, following his resignation, no longer answerable to the PCC, whose jurisdiction covers journalists working for publications that subscribe to the self-regulatory system through the Press Standards Board of Finance.

“As a result, that part of the investigation involving the News of the World was conducted by the Director of the PCC with Mr Myler.  The Chairman of the Commission also discussed the matter on a number of occasions with the Chief Executive of News International, Mr Les Hinton.”

The PCC stated today:

“Any suggestion that further transgressions have occurred since its report was published in 2007 will be investigated without delay. In the meantime, the PCC is contacting the Guardian newspaper and the Information Commissioner for any further specific information in relation to the claims, published today about the older cases, which suggest the Commission has been misled at any stage of its inquiries into these matters.”

Nick Davies told Commons committee in April that PCC phone hacking inquiry flawed

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You may recall that back in April Nick Davies gave evidence to the House of Commons Culture, Media and Sport select committee, for its review into press standards, privacy and libel.

In the course of that session he claimed there was ‘a real will on the part of the PCC [Press Complaints Commission] to avoid uncovering the truth about phone hacking’ and that newspapers still used private investigators: “It is wrong but they are not doing anything about it and that continues despite Motorman [investigation undertaken by the Information Commissioner’s Office into alleged offences under data protection legislation.] All that has happened is that they have got a little bit more careful about it. I actually got to know that network of private investigators who were exposed in Motorman. Years after that I was in the office of one of them and he was taking phone calls from newspapers while I was there.”

The committee chairman, John Whittingdale, said: “We did do an investigation both into Motorman and into Goodman so I do not want to revisit old ground too much”.

The same committee which today announced it will open a new inquiry ‘into the Guardian revelations about the use of illegal surveillance techniques by News International newspapers’ (Guardian.co.uk).

Yesterday Nick Davies’ Guardian exclusive – which reported Murdoch papers paid £1m to silence victims of phone hacking – alleged that the evidence posed difficult questions for the PCC: it has ‘claimed to have conducted an investigation, but failed to uncover any evidence of illegal activity,’ it was reported.

Davies is no friend of the Press Complaints Commission – as reported on Journalism.co.uk before – and used his appearance in front of the committee in April to argue that the ‘PCC’s performance is so weak that it threatens the concept of self-regulation.’

The PCC has stated today, in light of the new reports, that ‘any suggestion that further transgressions have occurred since its report was published in 2007 will be investigated without delay.’

Now, let’s look back at Davies’ comments in the Commons in April (from uncorrected evidence on House of Commons site). Davies laid the bait for us all, but it would seem only he pursued his allegations against News of the World, to secure yesterday’s scoop:

Mr Davies: It is that word that Roy [Greenslade] has just used that is the important one, their independence. They [PCC] are not sufficiently independent to do their job properly; they are not functioning as an independent referee. You could see it, for example, in the way they handled the Clive Goodwin [sic] story. There are newspapers publishing stories all over Fleet Street; there is a whole lot of hacking going on, hacking into mobile phones. They conducted an inquiry which was set up in such a way that it could not possibly disclose the truth about that illegal activity. Why? Why did they not conduct a proper, independent inquiry? It was the same with the information commissioner after Operation Motorman. We used the Freedom of Information Act on the information commissioner and got hold if the e-mails and letters between the commissioner and the Press Complaints Commission. You can see there the information commissioner saying, “Look, we have just busted this private eye. It is horrifying what newspapers are doing. Will you put out a clear warning to these journalists that they must obey the law?” The short answer was, “No, not if we can help it”. You may be familiar with all this —–

Q435 Chairman: We had an inquiry into Motorman.

Mr Davies: Did you have the e-mails and so on?

Q436 Chairman: We had representatives of News International and so on.

(…)

Mr Davies: Also, when he [Paul Dacre] goes into hospital to have operations on his heart, there is always a message sent round Fleet Street saying, “Mr Dacre’s in hospital, please do not report it”. Medical records are supposed to be plundered by Harry Hack with beer on his breath and egg on his tie. It is wrong but they are not doing anything about it and that continues despite Motorman. All that has happened is that they have got a little bit more careful about it. I actually got to know that network of private investigators who were exposed in Motorman. Years after that I was in the office of one of them and he was taking phone calls from newspapers while I was there. It has not stopped; it has just got a bit more careful. It had got so casual that every reporter in the newsroom was allowed to ring up and commission illegal access to confidential information, now they have pulled it back so that you have to get the news editor to do it or the news desk’s permission. It is still going on and it is against the law.

Q446 Paul Farrelly: Do you think the PCC missed a trick with its own standing reputation in not summoning Mr Coulson?

Mr Greenslade: I wrote at the time and have maintained ever since that the Goodman affair was a very, very black moment in the history of the PCC. This man was jailed for breaking the law. His editor immediately resigned but there were huge questions to ask about the culture of the News of the World newsroom which only the man in charge of that newsroom could answer. When I challenged the PCC about why they had failed to call Mr Coulson they said that he was no longer a member of the press. That seems to me to be a complete abnegation of the responsibilities of the PCC for the public good. In other words, to use a phrase Nick has already used, it was getting off with a technicality.

Mr Davies: If you say to Coulson, “Come and give evidence even though you are no longer an editor” and if he says, “No” then that is an interesting tactical failure on his part. It is not just the editor of the paper; what about the managing editor? Why not call Stuart Kuttner, the managing editor of the News of the World, who has been there for years and who has a special responsibility for contracts and money? Why not call him to give evidence? There was a real will on the part of the PCC to avoid uncovering the truth about phone hacking.

Q447 Chairman: We did do an investigation both into Motorman and into Goodman so I do not want to revisit old ground too much.

Mr Davies: It is what it tells you about the PCC.

MST response to Press Complaints Commission letter: “Suggestion of bad faith is entirely unjustified,” says Salz

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Anthony Salz, who is chair of the Independent Press Review Group and also on the Board of the Media Standards Trust, has replied to a letter from the chair of the Press Complaints Commission, Sir Christopher Meyer, (February 19, 2009), which made criticisms of the MST review calling for reform of UK press regulation, published on February 9, 2009.

Wednesday 11th March

Dear Sir Christopher,

Thank you for your letter of 19 February.

We will, of course, take it into account in the second stage of the review. In the meantime I feel I should reply to some particular assertions you make about the report.

1 Bad Faith

You suggest that the review is not being undertaken in good faith because we did not ask you to contribute to what you describe as a strident report. This suggestion of bad faith is entirely unjustified. I also strongly object to your personalised attack on the Director of the Media Standards Trust (MST).

The MST is an independent registered charity. It operates much like any other think tank and receives funding by donations from Foundations and individuals. This has included grants from the Esmée Fairbairn Foundation, the Nuffield Foundation and the Joseph Rowntree Charitable Trust. It was set up to foster high standards in news on behalf of the public.

We state clearly in the report that it represents Part 1 of a two-stage review. The first part is an analysis of the current system of self-regulation (including, apart from the PCC, the legal cases, issues concerning user-generated content, the Motorman investigation, the challenge to achieve consistency of regulation and governance of regulators). This is based on publicly available information and on the findings of a recent YouGov poll that the MST commissioned.

No-one was formally consulted in the first stage. The analysis in Part 1 was always intended to start a debate and provide a basis from which we could consult widely. Consultation with the PCC alone in advance would have been inappropriate. We felt it important that Part 1 should not be influenced by a key body with a particular interest. The PCC has shown that it is, of course, well placed to obtain media coverage for its reply.

All members of the Review Group feel that there is a need for change and that the report facilitates a debate. We are keen that the PCC, those who have been involved with it and its stakeholders are part of that debate.

2 PCC Statistics

You claim that the report “fundamentally misinterpret[s] the PCC’s statistics”. Your letter cites one statistic in support of this claim – that less than 1 in 250 complaints is upheld in adjudication. This statistic is not in fact in the report, though it was mentioned by Sir David Bell on air. It derived from your 2007 Annual Report. Page 25 states that the PCC adjudicated in 32 cases of which 16 were upheld against newspapers, from a total of 4,340 complaints (equating to 1 upheld adjudication for every 271 complaints).

As your letter illustrates, the PCC’s figures and terminology are somewhat difficult to follow. The explanation in your letter is helpful, as is the recent addition to your website “the Facts behind the Figures”. Both show why readers of your published materials have had a hard time understanding what is going on. However you explain your terminology, 32 adjudications from 4,340 complaints is to me a small number of adjudications.

Our report acknowledges that you dispute the value of using adjudications as a measure (on page 28). We feel, nevertheless, that the number of adjudications is important – since it is the only public sanction the PCC has. Others have also argued for their importance. Professor Greenslade last year, for example, told the House of Lords Select Committee that “The failing of the PCC is the failing to adjudicate often enough”. Without adjudication, he went on to say, “newspapers escape censure and punishment too often when they actually at the final hour do some kind of deal to get themselves out of a mess, when they breach the rules as it were”.

3 Inaccuracy

You stated on air, and repeat in your letter, that the report has many inaccuracies. In addition to the 1:250 point above, you cite only the statement that the ASA was modelled on the PCC. You are right: it was in fact modelled on the Press Council, the predecessor to the PCC (Richard Shannon, A Press Free and Responsible, p.13). The substance of the point still stands but we will, of course, correct the reference.

4 2007 Select Committee

In your letter you criticise the report for failing to mention the Select Committee on Culture, Media and Sport, 2007. You suggest that this Select Committee makes the PCC accountable. The CMS Select Committee has led important examinations of aspects of self-regulation although it is not constituted to hold the PCC to account. Select Committees are held at irregular intervals and the Committee ‘chooses its own subjects of inquiry’ (from its website). The 2007 Select Committee, for example, focused closely on the issues raised by the harassment of Kate Middleton, Clive Goodman’s conviction, and Operation Motorman.

Reference to the 2007 Select Committee report might have been useful. It expressed concern about the ‘complacency of the industry’s reaction to evidence presented by the Information Commissioner showing that large numbers of journalists had had dealings with a private investigator known to have obtained personal data by illegal means’ (p.3). It went on to say ‘we are severely critical of the journalists’ employers for making little or no real effort to investigate the detail of their employees’ transactions. If the industry is not prepared to act unless a breach of the law is already shown to have occurred, then the whole justification for self-regulation is seriously undermined’ (p.3).

It said that the current form of press self-regulation offered more protection than relying exclusively on the law. This is important and should indeed be a purpose of self-regulation. It noted (as we do in our report) that the Press Complaints Commission ‘has evolved’, and said that it had ‘become a more open body which provides a better service to complainants’. However, it also made clear that ‘This Report is not a broad look at whether the system of self-regulation as currently operated by the industry is the best way to curb unjustified practices and punish those who publish material obtained in such ways. To reach a properly informed view on such a complex subject would require more time and more evidence’ (p.5).

The same Select Committee concluded its Summary by saying that ‘The system for regulation of the press raises serious and complex issues which may merit a broader investigation than we have been able to undertake here. We believe that this is a subject which… deserves careful examination in the future’ (p.4).

These statements, taken together, both acknowledge positive changes in the PCC and support the case for a broader review of press self-regulation.

5 Some Substantive Questions

You say the PCC must give priority to the forthcoming hearing of the Select Committee. After this, I would be interested to meet with you and your colleagues to hear the PCC’s views on some of the substantive questions that are raised about future press regulation. For example:
•    Is it sufficient that the PCC’s constitution essentially sets it up only as a complaints-handling body?
•    Would it not be preferable to avoid having working editors on the Press Complaints Commission (as distinct from those who have worked in journalism)?
•    Would the position of the PCC as a regulator be assisted if it could be given greater powers to ‘enforce’ its decisions for the benefit of a complainant, making it more ‘competitive’ with the legal route?
•    Would you consider that there should ideally be some structure for independent appeal against a decision made by the PCC?
•    How might the PCC change in order to meet growing expectations of public accountability (expectations that are fed by the press)?
•    Why should the PCC not be covered by the Freedom of Information Act (assuming that it would be possible to protect the privacy of complainants who wanted it)?
•    Is there any reason why the PCC should not make its sources of revenue transparent?

We have been clear that our first report is a starting point for debate. Though I welcome your response, I do not accept your characterisation of our report.

I look forward to a discussion in the coming months of the issues raised about the future shape of press regulation.

Yours sincerely,
Anthony Salz