As I hope to explain as I develop my case, there is a distinction between the defences available at criminal law and at civil law. It seems to us that there should be no higher test in defending a criminal prosecution than in resisting liability under a claim for civil compensation. The Minister will know that a charge can be defended under section 55(2)(d) of the Data Protection Act when it can be shown

“that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest.”

That language is to be contrasted with the language in section 32(1) of that Act, which states that the requirement for exemption from civil liability depends upon a journalist showing that he reasonably believed that publication would be in the public interest.

The difference in statutory language between those two sections produces the bizarre result that if a journalist investigating accusations of improper conduct, for example by a business man or a senior politician, proceeded in the honest and reasonable but mistaken belief that publication would be in the public interest, he would be able to establish an exemption from civil liability but not a defence against a criminal charge arising from the same facts. That anomaly, to which I referred at the outset, is a matter of serious concern. It will be significantly more serious if clause 75 is accepted and increases the penalty for offences under section 55 of the Data Protection Act from a fine to a sentence of imprisonment.

To return to the Minister’s points, every newspaper or magazine publisher is a data controller for the purposes of the Data Protection Act. Many journalists, particularly those operating on a freelance basis, are also data controllers for the purposes of that Act. The courts have held that the operations involved in producing a printed newspaper using electronic equipment inevitably amount to processing of data for the purposes of the Act and that that processing will include the acquisition, recording and use of information by journalists. Under the provisions of the Act, such processing may potentially give rise to both civil and criminal liability.

Civil liability may arise if the publisher or journalist breaches the statutory duty imposed by section 4(4) of the Act, which requires compliance with the data protection principle set out in part I of schedule 1. The Court of Appeal has recognised that in the operations required for the production and publication of a newspaper,

“it will be impractical to comply with many of the data processing principles.”

It follows that publishers and journalists are likely to incur civil liability for breaches of the Data Protection Act unless the exemption relating to journalism provided by section 32 can be invoked.

In the Naomi Campbell case against Mirror Group Newspapers—I do not know whether the Minister remembers it—the Court of Appeal held that the provisions of section 32 of the Act provide

“widespread exemption from the duty to comply with the provisions that impose substantive obligations upon the data controller”,

and that that widespread exemption applied both before and after publication. In practical terms the effect of section 32, as interpreted by the Court of Appeal in the case of Campbell, is to make available an exemption from civil liability for publishers and journalists, subject only to the following simple conditions set out in section 32(1)(b) and (c): first, that

“the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest”; and secondly, that

“the data controller reasonably believes that, in all the circumstances, compliance” with the data protection principles is incompatible with the purposes of journalism. The vital words contained in those conditions are

“the data controller reasonably believes”.

The effect of those words is that to invoke the exemption, the data controller does not have to prove that the publication to which the process relates would be in the public interest, only that he “reasonably believes” that it would be in the public interest.

That acknowledges the reality of deadline journalism. In the early stages of investigating a story, there may be reasonable grounds to believe that publication would be in the public interest, although it may ultimately transpire after full investigation that that is not so. It also avoids the imposition of civil liability on the journalist who honestly and reasonably, but mistakenly, believes that publication would be in the public interest.

The importance of that approach and the latitude that it allows to responsible journalists was expressly recognised by the then Under-Secretary of State for the Home Office Department, the right hon. Member for Knowsley, North and Sefton, East (Mr. Howarth), in the Standing Committee that scrutinised the Data Protection Bill. He said:

“Given the high importance of freedom of inquiry and expression to our society, we must, on balance, favour publication, subject to reasonable restraint on the journalist's actions. The present test has been designed with some care to do that. Of course journalists might get it wrong that is in the nature of things. But they need to get it significantly wrong before the law should intervene...We should maintain a proper emphasis on freedom of expression—[Official Report, Standing Committee D, 21 May 1998; c. 213.]

That is what the then Minister said when dealing with the civil regime under the 1998 Act.

As it is obvious that potential criminal liability might have more serious consequences for a journalist than potential civil liability, one would expect the same or a greater degree of latitude to be offered to a journalist in the provisions of the Act relating to criminal liability, but that is not the case, as we know. Section 55(1) of the Data Protection Act makes it a criminal offence for a person to

“knowingly or recklessly, without the consent of the data controller—

(a) obtain or disclose personal data or the information contained in personal data, or

(b) procure the disclosure to another person of the information contained in personal data”.

Clearly, investigative journalists may often obtain information directly or through a source without seeking the consent of the data controller holding the data containing that information. One has only to take the common example of an investigation into allegations of improper or unethical practices within a business organisation. Such a story could not be investigated effectively, particularly if a source within the business organisation was involved, without risking criminal liability under section 55 of the 1998 Act. Obtaining the information will almost certainly also give rise to potential civil liability, as it will be impracticable to comply with the data protection principles. The journalist will be able to invoke the provisions of section 32 to secure exemption from civil liability on the grounds that he reasonably believes that publication would be in the public interest, so why should he not also have at least the same level of protection from potential criminal liability arising from the same facts?

That anomaly is a matter of serious concern as the Act stands, and it will be exacerbated by implementation of clause 75. I have informed the Committee of the genesis or origin of those concerns, which I share, both as a newspaper lawyer and as a citizen. As I understand it, we have yet to see—certainly the people advising me on the issue have yet to receive—a rational response to  their concerns, which they have passed to the Government. I shall leave it to the Minister to explain the Government’s response to my points, although I am sure that I know what it is.

First, the imprisonment sanction will have the chilling effect that the Minister mentioned in her intervention. To introduce imprisonment for investigative journalists who obtain information without the consent of the data controller who holds the data containing that information in circumstances when the journalist may be unable to establish that the obtaining was justified in the public interest is self-evidently capable of discouraging the press from actively pursuing the investigation of allegations raising matters of legitimate public interest, and accordingly is capable of having a chilling effect on press freedom.

Those concerns have not just been dreamt up in the bars of Fleet street or in the offices of lawyers who benefit from work from media companies.

In a judgment made by the European Court of Human Rights, on 17 December 2004, on the case of Cumpana v. Romania, a grand chamber of 17 judges, in the course of finding that the imprisonment of a journalist had infringed his article 10 rights on freedom of expression, stated:

“Although the Contracting States are permitted, or even obliged, by their positive obligations under Article 8 of the Convention”,

which deals with the protection of privacy, family life and so forth,

“to regulate the exercise of freedom of expression so as to ensure adequate protection by law of individuals’ reputations, they must not do so in a manner that unduly deters the media from fulfilling their role of alerting the public to apparent or suspected misuse of public power... Investigative journalists are liable to be inhibited from reporting on matters of general public interest—such as suspected irregularities in the award of public contracts to commercial entities—if they run the risk, as one of the standard sanctions imposable for unjustified attacks on the reputation of private individuals, of being sentenced to imprisonment or to a prohibition on the exercise of their profession.”

It continued:

“The chilling effect that the fear of such sanctions has on the exercise of journalistic freedom of expression is evident”.

A little while later, it said:

“Such a sanction, by its very nature, will inevitably have a chilling effect.”

In my view—I was going to say “and in the view of those who instruct me in this matter”, but hon. Members know what I mean.