APPENDICES
defendant acted in the reasonable belief that its processing of data was in the public interest, and not on whether it actually was in the public interest. Guardian News argued that s55 is more far reaching than unlawful theft and trading of confi- dential information, catching not just those responsible for obtaining personal data but also those responsible for its procurement and – perhaps most critically for present purposes – for its subsequent disclosure.409 Whilst s78 of the CJIA provides specific protection for journalistic activity based on a subjective threshold, the reasonableness of the journalist's belief at the time of publication remains to be assessed against an objective standard.
¶Role of the Information Commissioner 4.80 The role of an independent data protection regulator was first established by the Data
Protection Act 1984 under the name of Data Protection Registrar.410 The regulator was renamed as the Data Protection Commissioner under the DPA 1998 and the name was changed to Information Commissioner when the FOIA 2000 came into force.411 The functions of the Information Commissioner are set now out in the Data Protection Act 1998 and the Freedom of Information Act 2000.412 The various powers and duties contained in the Acts are vested in the Commissioner; although in practice they are largely discharged through some 300 staff who constitute the Information Commissioner's Office (ICO).413
¶Duties of the Information Commissioner in relation to the Data Protection Act 1998 4.81 The Act sets out a number of general functions and duties of the Commissioner. Generally
these relate to promoting good practice rather than punishing poor practice and can be described as functions relating to education and co-operation.414
¶4.82 It is the duty of the Commissioner to promote the following of good practice by data
controllers and, in particular, to promote the observance of the requirements of the Act by data controllers.415
¶4.83 The Commissioner has a duty to disseminate information and guidance to the public relating
to the Act. The information must set out details of the operation of the Act, good practice and other matters within the scope of his or her functions under the Act.416
¶4.84 The Commissioner must arrange for the dissemination, in such form and manner as is
1921considered appropriate, of such information as may appear expedient to give to the public about the operation of the Act, about good practice, and about other matters within the scope of his or her functions under the Act, and may give advice to any person as to any of those matters.417
¶Appendix 4 | Legal Materials
¶4.85 The Commissioner has a duty where either (1) the Secretary of State so directs by order,
or (2) the Commissioner considers it appropriate to do so, to prepare and disseminate to such persons as he considers appropriate codes of practice to provide guidance as to good practice. Prior to issuing codes of practice the Commissioner must consult trade associations, data subjects or persons representing data subjects as appears to him to be appropriate.
¶4.86 The Information Commissioner must prepare a code of practice which contains (1) practical
guidance in relation to the sharing of personal data in accordance with the requirements of the DPA, and (2) such other guidance as the Commissioner considers appropriate to promote good practice in the sharing of personal data. Before a code is prepared, the Commissioner must consult such of the following as the Commissioner considers appropriate: (a) trade associations, (b) data subjects, and (c) persons who appear to the Commissioner to represent the interests of data subjects.418 When such a code is prepared, it must be submitted to the Secretary of State for approval and there are rules as to procedure.419
¶4.87 The Commissioner also has responsibility for disseminating information relating to: (a)
any finding of the European Commission that a country or territory outside the European Economic Area does, or does not, ensure an adequate level of protection, (b) any decision of the European Commission which is made for the relevant purposes, and (c) such other information as it may appear to him or her to be expedient to give to data controllers in relation to any personal data about the protection of the rights and freedoms of data subjects in relation to the processing of personal data in countries and territories outside the European Economic Area.420
¶4.88 In terms of duties to report, the Commissioner must lay annually before each House
of Parliament a general report on the exercise of his or her functions under the DPA. The Commissioner may from time to time lay before each House of Parliament such other reports with respect to those functions as he or she thinks fit, under s52. In 2006, the Information Commissioner published two reports, "What Price Privacy? The unlawful trade in confidential personal information" and the "What Price Privacy Now?", pursuant to this section.
¶4.89 A corollary of the fact that the DPA largely leaves it to individuals to take action to assert their
rights in relation to processing of personal data for special purposes, including journalism, is that such individuals may apply to the Commissioner for assistance in their cases. An individual who is an actual or prospective party to any proceedings which relate to personal data processed for the special purposes, including the purposes of journalism, may apply to the Commissioner for assistance in relation to those proceedings.421 The power to provide assistance is limited to cases which involve a matter of substantial public importance. Assistance in most cases refers to the costs of advice or assistance from legal representatives or an agreement to indemnify the applicant against costs. The Commissioner must consider and decide whether and to what extent to grant the application, but cannot do so unless the case involves a matter of substantial public importance.422 The existing Information Commissioner notes that since 2009 no applications for such assistance have been made.423
¶s52A 419 s52B 420 s51(6)421 ibid p36, lines 8-24, James Murdoch, ibid p11, lines 1-5, Richard Peppiatt, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/11/Transcript-of- Morning-Hearing-29-November-2011.pdf p37, lines 5-16, ibid p52, Frederic Michel, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/05/Exhibit-FM91.pdf s53 422 s53(2)
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