You may remember the Sun publishing last November a recording of a conversation between Gordon Brown and the mother of a soldier killed in Afghanistan – a story that blew up over the issue of the PM’s handwriting, and which only Sun journalists seemed to care about.
The PCC refused to rule on whether there really was a public interest defence that justified breaching the PCC code ban on intercepting private phone calls (on the grounds that they would only hear complaints from people directly affected ie Gordon Brown).
So I tried my luck with the Information Commissioners’ Office, which enforces data protection rules. It’s job is to “uphold information rights in the public interest, promoting openness by public bodies and data privacy for individuals.”
The ICO has rejected my complaint as follows:
Thank you for your correspondence, regarding the recording of private phone calls and the release of this information by The Sun newspaper. I apologise for the delay in my response, however we currently have a significant backlog of cases awaiting attention.
In your correspondence you are of the understanding that it is illegal to record and publish private phone calls, it is important to mention this office can only comment upon the Acts that we oversee and the relevant legislation here is the Data Protection Act 1998.
The Data Protection Act 1998 requires data controllers (those collecting and using personal data), to comply with eight rules of good information handling practice called the Data Protection Principles. The Commissioner’s specific duties include providing information and advice to the public and data controllers on the requirements of the Act and best practice.
The Data Protection Act regulates the processing of personal information across a huge number of activities carried out by data controllers. It is therefore necessary to exempt certain activities, carried out for particular purposes, from some or all the provisions of the Act where it would perhaps be inappropriate or simply not practical to subject them to all parts of the legislation.
The exemptions can be found in part IV of the Act, and also Sch.7 – miscellaneous exemptions. As the name would suggest, these exempt the Data controller and certain types of processing for specific provisions of the Act.
Section 32 of the Act contains an exemption for Journalism, literature and art. If the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material, then it is exempt from large sections of the Act.
Therefore it would not breach the Data Protection Act to publish the material if it were for the above purposes.
Whether the recording of the conversation breached the Regulation of Investigatory Powers Act 2000 is another matter … There’s a handy Q&A about phone tapping on the BBC site, if you’re interested.
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