The biggest media law story of recent weeks was the High Court claim by the Duke of Sussex and others, including Baroness Lawrence and Sir Elton John, against Mail publisher Associated Newspapers Ltd. This was a bid to establish a new frontier in the litigation borne out of the phone-hacking scandal. Lurid allegations of spying, surveilling, phone-tapping and voicemail interception were once again laid bare in court.
Having covered many hearings in this litigation over the years, I can honestly say they begin to blur into one – the same private investigators, the same names being referred to day after day over several weeks.
Some of the claims made during this trial had the capacity to shock nonetheless. However, in the end, it did not matter as Mr Justice Nicklin concluded that there was not enough evidence linking any of the complained-of articles to unlawful information gathering by Associated. Of course, its celebrity claimants, royal connections and an opportunity for the media to participate in a rare outbreak of introspection meant this case would always have ‘cut through’. But in terms of any legal developments, it hasn’t taken us very far.
More interesting in terms of its potential wider impact on media law, journalists and newsrooms, was the case of former BBC historian Laurence Westgaph and his failed attempt to force Mill Media to hand over information about sources by using data protection law. Mill Media’s Liverpool title, The Post, had published articles detailing how National Museums Liverpool (NML) appointed Westgaph to the prominent role of Historian in Residence – despite NML being aware claims of abusive behaviour towards women had been made against him. The Post’s published work was based on interviews with over a dozen sources, including former partners of Westgaph.
Westgaph issued a statement to The Post through his lawyers saying he ‘categorically denied’ the claims and NML launched an investigation, following which it concluded it acted in line with its policies in relation to his appointment.
Westgaph initially said he was applying for a High Court injunction, but instead brought a data protection claim in the county court against Mill Media, seeking all of the data the organisation held on him and information regarding the sources of their articles under Subject Access Request (SAR) provisions in the Data Protection Act 2018 and the UK General Data Protection Regulation (GDPR). Mill Media was able to successfully deploy the journalistic exemption within data protection legislation to defend the claim, but still ran up a £75,000 costs bill doing so. Its solicitor, Anne Mannion of Lewis Silkin, said the ruling would ‘certainly be of help to other media organisations who are looking to apply the journalism exemption’.
Although only a lower-court decision, this case is of great interest to both journalists and legal professionals because it touches on so many topical areas of media law. There is the issue of media organisations being on the hook for large costs bills, even when they win; the protection of sources in a legal landscape, meaning UK journalists are unable to offer the sort of cast-iron guarantees of their US counterparts; and the problem of small, hyper-local publishers facing potentially ruinous legal action. All are worthy of many more column inches than Harry’s anguish over his lost case. But the really novel feature of Westgaph’s case is that it appears to be the first of its kind – where a claimant has used the SAR provisions against a media organisation, which has then successfully deployed the journalistic exemption.
SARs can be of great use to journalists; for instance if they are working with a subject who can use such a request to ask an organisation to provide all the data it holds on them. Occasionally, SARs have even been used to uncover what PR teams really think about some reporters. But they also create something of a minefield for journalists, as any data subject can ask for delivery of all the data held on them. It is only right that an exemption is built in for journalistic purposes to prevent the sorts of abuse easily imagined from those who want to conceal wrongdoing.
Over the six years I’ve been a McNae’s co-author, the journalistic exemption in data protection law has troubled me. It has, to my knowledge, not been tested in court (until now). What has bothered me is the way some journalists and editors interpret it as meaning they are fully exempt from data protection legislation and can carry on as before. Not so; what it means is every organisation must regularly audit what data they hold, as they risk huge fines (up to £17.5m) for data breaches. And every individual journalist should regularly check whether they need to keep personal data they acquire through their work – court lists, for example, are full of it.
So the fact that Mill Media was able to successfully deploy the exemption and defend its journalism has brought some comfort, even as I fret about how many documents some reporters may be hoarding.
Sian Harrison is a freelance journalist and co-author of McNae’s Essential Law for Journalists. The 28th edition is out now
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