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<strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain 77 (d) accurate; (e) kept for no longer than is necessary; (f) processed in line with individuals’ rights; (g) secure; and (h) not transferred to countries outside the EEA and several other approved countries without adequate protection. With regard to preventing or limiting invasions of privacy by the media, these provisions will be relevant where the media use surreptitious means by which to obtain information about an individual, for example by using a zoom lens, or by committing or using the fruits of, for example, theft, trespass, breach of confidence or any unlawful act in order to gain the material. The principles may apply where the media reveals information about an individual where the disclosure is disproportionate to the reasons for releasing the information. This may be particularly relevant where photographs are used. The media must also be careful to ensure that any material stored or revealed about an individual is accurate to avoid falling foul of the DPA. Under the DPA, all personal data must be fairly and lawfully processed. “Processing” personal data under the DPA means obtaining, recording, holding, transferring, or carrying out any operation on the data. Whether personal data has been lawfully processed is perhaps more readily ascertainable than whether it has been fairly processed. Schedule 2 of the DPA assists in this regard, setting out conditions which are relevant in the processing of any personal data. At least one of these conditions must be satisfied for data to be deemed processed fairly. With regard to sensitive personal data, at least one of the conditions in Schedule 2 and at least one of the more restrictive conditions set out in Schedule 3 of the DPA must be met. Section 10 of the DPA entitles an individual to give written notice to a data controller to cease, or not to begin, processing personal data under certain circumstances. These are that the processing of the data or the manner or purpose for which it is processed is likely to cause unwarranted substantial damage or distress to the individual or another. Section 13 entitles an individual who suffers damage, or, in the case of processing by the media, distress, to claim compensation. Section 32 of the DPA provides an exemption from the data protection principles (save for the seventh, concerning security) if: (a) the data is processed with a view to publication by any person of any journalistic, literary or artistic material; (b) the data controller (this means a person who determines the purposes for and the manner in which personal data are, or will be, processed) reasonably believes that, having regard to the special importance of the public interest in freedom of expression, publication would be in the public interest; and (c) the data controller reasonably believes that compliance with the data subject’s rights and the principles is incompatible with the special purposes of journalism, artistic and literary purposes. This exemption applies before and after publication, and is therefore capable of being used as a defence in respect of material that has already been published. Article 2 of the Data Protection
78 <strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain (Processing of Sensitive Personal Data) Order 2000 allows the processing of sensitive personal data for journalistic, artistic or literary purposes relating to a wide range of conduct, for example, unlawful acts, dishonesty and incompetence. The processing must be in the substantial public interest. The Protection of Harassment Act 1997 The Protection of Harassment Act 1997 (PHA) establishes criminal and, in some cases, civil liability for a course of conduct that amounts to harassment of another or two or more people. The PHA provides an exemption under section 1(3)(c) if it can be shown that the conduct alleged to be harassment is reasonable in the circumstances. Although not precisely defined in the PHA, the definition of harassment allows a liberal application by the courts. As such it extends to “harassment” by the media, and could include several forms of investigative journalism, such as “doorstepping”, which may also amount to trespass, and also the publishing and broadcasting of material. In this regard, any instance where a broadcast/publication occurs more than once, the journalist/media organisation may be subject to the criminal and civil sanctions imposed under the PHA. Furthermore, the PHA provides no guidance as to whether harassment for the purposes of reporting material would be deemed to fall within the exemption relating to ‘reasonable’ conduct as set out in section 1(3)(c). As such, the PHA provides a platform, albeit through the ambiguity of certain defined terms, from which judicial interpretation may determine the extent to which individuals should be protected from such conduct. The PHA also has the potential to address the fundamental harm at the heart of an invasion of privacy in that it focuses on the nature of the intrusion itself, and not simply the information or knowledge obtained from it. In a case 153 brought by an individual against The Sun newspaper, the publication of articles by the newspaper, which were foreseeably likely to cause the claimant distress and stimulate a racist reaction on the part of readers, was a course of conduct amounting to harassment under the PHA. Further, in order to determine whether in any individual case harassment was established, the publisher is now required to consider whether a proposed series of articles likely to cause distress would constitute an abuse of freedom by the press. The pressing social needs of a democracy require that such abuse should be curbed by the State. The Regulation of Investigatory Powers Act 2000 The Regulation of Investigatory Powers Act 2000 (RIPA) sets out the terms upon which the interception of public and private communications will be an offence. RIPA regulates both postal and electronic communications and includes emails. RIPA may have relevant application in the context of surreptitious recording of, for example, the telephone conversations of public figures. The Protection of Privacy – Regulation The regulatory codes are important for two reasons. First, they have an effect in themselves in the areas they regulate. Additionally, the courts are obliged under the HRA, as outlined in paragraph 15 above, to pay particular regard to any privacy code when considering whether to grant any relief that may limit freedom of expression. 153 Thomas v News Group Newspapers and Another [2002] EMLR 4 CA.
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Overlooked - Liberty

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