APPENDICES
authorities in Chapter VI and on co-operation and consistency in Chapter VII for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression in order to reconcile the right to the protection of personal data with the rules governing freedom of expression".
¶4.110 Article 80 imposes a duty on Member States to make provision for exemptions from the
obligations imposed by the new Directive and Regulation where processing is carried out solely for the journalistic purposes, but the exemptions need extend only to reconcile the protection of personal data with the right to freedom of expression.
¶4.111 The explanatory memorandum to the draft regulation sets out that Member States should
classify activities as "journalistic" for the purpose of the exemptions and derogations to be laid down under this Regulation if the object of these activities is the disclosure to the public of information, opinions or ideas: irrespective of the medium which is used to transmit them. They should not be limited to media undertakings and may be undertaken for profit-making or for non-profit-making purposes.
¶4.112 Responses to the draft Regulation have been provided by the ICO and the Government. The
Justice Select Committee was tasked by the European Scrutiny Committee to give its opinion on the EU Commission's proposals to reform EU data protection laws. The Justice Select Committee has heard evidence on this issue over a number of sessions and taken written evidence on the proposals.
- Criminal law
¶Introduction 5.1 The criminal law imposes restrictions on the methods and practices used to obtain information
from or about third parties. The conduct of journalists in this respect is restrained by the provisions of the law which criminalise forms of hacking, blagging, obtaining information by payments to public officials, obtaining, disclosing or procuring the disclosure of personal data and obtaining information in breach of the Official Secrets Act. The criminal law also restricts the content of publications in certain respects: for example, there are statutory provisions which prevent the reporting of certain criminal proceedings, which criminalise the publication of information that has been disclosed in contravention of the provisions of the Official Secrets Acts, and which criminalise publications which incite hatred on grounds of race, religion or sexual orientation.
¶5.2 Whilst some offences are strict liability offences, other criminal offences are subject to an
express defence that the conduct was in the "public interest". In these circumstances a journalist acting in the course of their profession may seek to persuade the court that their conduct, or the publication in question, was in the public interest.
¶5.3 A journalist is not above the law and a journalist who breaks the law will be in the same
1927position as any other member of the public – there is no exemption from compliance with the criminal law simply by virtue of their profession. However, particular provisions of the law and defences have special application to journalists. It is generally rare for the CPS to prosecute journalists who commit offences in the course of their work and a prosecutor will be required to balance the competing considerations in determining whether prosecution is
¶Appendix 4 | Legal Materials
in the public interest.434 The Director of Public Prosecutions has released interim guidelines on the approach that prosecutors should take when assessing the public interest in cases affecting the media. These guidelines have immediate effect. The interim consultation period closed on 10 July 2012, after which final guidelines will be issued.
¶5.4 As is apparent from the analysis in Part D Chapter 1 of the Report (to which reference is
essential for an understanding of the role of regulation), that the operation and enforcement of the criminal law generates real challenges for the police and other law enforcement agencies. Having said that, the key provisions of criminal law of relevance to journalists, in particular the restrictions on methods and practices for obtaining information and the content of publications are as follows.
Restrictions on the methods of obtaining information Interception of communications – Regulation of Investigatory Powers Act 2000
¶5.5 The Regulation of Investigatory Powers Act 2000 (RIPA) creates two offences relating to the interception of communications:
(a) It is an offence for a person intentionally and without lawful authority to intercept at any place in the United Kingdom any communication in the course of its transmission by means of a public postal service or a public telecommunication system, see s1(1). (b) It is an offence for a person intentionally and without lawful authority to intercept at any place in the United Kingdom any communication in the course of its transmission by means of a private telecommunication system, see s1(2). It is a defence for a person who would otherwise be liable under s1(2) if they have a right to control the operation or the use of the system; or have the express or implied consent of such a person to make the interception, see s1(6).435
¶5.6 Section 1(1A), which came into force on 16 June 2011, provides that the Interception
of Communications Commissioner may serve a monetary penalty notice on a person if the Commissioner considers the person has intercepted without lawful authority any communication in the course of its transmission by means of public telecommunication system and was not, at the time of the interception, making an attempt to act in accordance with an interception warrant which might explain the interception, and the Communications Commissioner does not consider that the person has committed an offence under s1(1).
¶5.7 Section 2(1) defines various terms including public postal service, public telecommunications
1928service and private telecommunications system. Interception is defined in s2(2) as follows: a person intercepts a communication in the course of its transmission by means of a telecommunication system if, and only if, he (a) so modifies or interferes with the system or its operation, (b) so monitors transmissions made by means of the system, or (c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system, as to make some or all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication. A tape recording of a telephone call by one party to the call without the knowledge of the other party does not