Dionne Jackson Miller | Data law treads dangerous ground
Below are proposed amendments to the data protection legislation before a parliamentary committee.
It is highly likely that data subjects who are the subject of investigative journalism will try to use this law as an end run around defamation law, where the courts almost inevitably refuse applications for prior restraint, given the importance of the constitutional right to freedom of expression. It is also highly likely that such data subjects will attempt to use this law to impose prior restraints on publications inimical to their interests.
The office of the commissioner is set up as a body corporate answerable to no one, and with no recourse to her or his decisions, except through the court. The desire to ensure the independence of the office is understandable and commendable. However, the virtual fiefdom created by the office, and the commissioner's almost complete authority in decision-making, means that tremendous power lies in the hands of a single individual.
In journalism, where time is often of the essence, and as has been acknowledged by the learned British judge Lord Nicholls in the seminal case of Reynolds v Times Newspapers, "news is often a perishable commodity", forcing disputes through the court system prior to publication may well result in killing important pieces of journalism and will, arguably, amount to giving a licence to the imposition of prior restraint, long regarded as almost always unacceptable in defamation law.
Sections 15 and 16
Section 15 requires data controllers to be registered and provide the commissioner with registration particulars, described in Section 16 to include a description of personal data to be processed and a description of the purposes for which the data are to be processed.
This is an overly broad provision that could have significant implications not just for freedom of the press, but the wider constitutional right of freedom of expression. Subsection (2) leaves it entirely in the hands of the minister to determine who shall not be required to register, and leaves as the only criterion "processing ... unlikely to prejudice the rights and freedom of data subjects". There is no provision for any kind of balancing of rights, and no acknowledgement of the right to freedom of expression that will necessarily entail processing data in relation to various data subjects.
In relation to journalism, in particular, it imposes a Big Brother type of oversight likely to be inimical to investigative journalism.
We submit that a better way to word the provision is to stipulate specified categories of data processors to be registered and to make a specific exemption for processing in furtherance of the right to freedom of expression.
For the avoidance of all doubt, Section 37 should be broadened to exempt the special measures from Section 15.
We are seriously concerned that Section 18 creates a criminal offence for failure to comply with Section 16. The offence carries the significant penalty of a fine of up to $2 million or two years in prison in Parish Court or a fine (unlimited) or five years in prison in the Supreme Court.
This is likely to have a completely chilling effect on press freedom and freedom of expression.
Section 19 is of particular concern as it refers to what is called "specified processing:
19. - (1) This section applies to "specified processing", being processing of a description specified, in an order made by the minister in accordance with Section 76(3), as appearing to the minister to be particularly likely to cause substantial damage or substantial distress; or to otherwise significantly prejudice the rights and freedoms of data subjects.
The terminology itself is of concern as to its extreme subjectivity. It would seem that purely emotional distress and damage, excluding any pecuniary loss, would be enough to prevent processing. In addition, the lack of a public-interest test to ascertain whether the public interest in the processing outweighs the damage or distress to the individual is inimical to press freedom and freedom of expression, and out of step with the constitutional law approach of balancing rights.
Placing this decision in the minister's hands is unacceptable and creates a situation where the political directorate is being given power to stymie investigative journalism, which may well be focused on the administration of which the minister is a part.
Of further concern is that Subsection (5) creates a criminal offence punishable by up to $5 million or five years in Parish Court or 10 years or unlimited fine in the Supreme Court.
Section 37 should be broadened to include Section 19 as an exempt provision.
Power of the Commissioner
The office of the commissioner is set up as a body corporate answerable to no one.
Section 37 provides for the commissioner to determine, under Section 52, whether data is being processed for the special purposes (journalism, artistic or literacy purposes).
There are concerns here about:
n Such a critical determination about what is often going to be time-sensitive information to be made by a single individual;
n The only appeal process being by way of court proceedings (as provided by Section 55) which will likely be expensive, time-consuming and probably out of the reach of many small publications and freelance journalists.
The commissioner may prepare and disseminate to such persons or entities "as the commissioner considers appropriate mandatory codes to be adhered to ...".
The commissioner's powers are extremely wide and lack details. This is another of the many examples of powers that can be exercised in the commissioner's sole discretion.
The office should be a commission of Parliament, to which it is accountable.
More precise language is needed, stating that the powers of the commissioner are to be in accordance with the act and that the office is accountable to Parliament.
"Personal data which are processed only for the special purposes are exempt ...".
Allegations that publication is not only for the purpose of journalism could stifle the practice of journalism in a small, close society.
Remove the word 'only' wherever it occurs in the bill in relation to the special purposes, including clause 37(4)(a) and 52(1)(a).
In considering for the purposes of subclause (1)(b) whether the belief is a reasonable one, regard may be had to the data controller's compliance with any code of practice which -
(a) Is relevant to the publication in question; and
(b) Is designated by the commissioner by order published in the Gazette for the purposes of this subsection.
This places the commissioner in a superintending role as regards the practice of journalism to determine whether publication would be in the public interest. It is submitted that current defamation laws are sufficiently stringent to protect the interest of the data subject and balance competing rights.
The public interest principle has been judicially considered and is well developed in the defamation case law. It is fitting that the courts should remain the arbiters in disputes concerning freedom of expression and the media given the fundamental importance of those principles to a functioning democracy. As currently drafted, the bill arrogates the powers of the court unto the commissioner. This, in effect, creates a situation where the commissioner is given wide and deep powers to censor and kill publications about other agents of the state. This is unhealthy for democracy and undermines the freedoms enjoyed not only by the press but all citizens.
n Delete clause 37(3)(b).
Section 61 provides that an individual may ask the commissioner for assistance. However, if the commissioner refuses such assistance, there is no recourse. While commendable that an avenue for assistance is provided for individuals, again this places far too much power in the hands of one person.
Potential Conflict with Access to Information Act
Wide exemptions to the data protection standards or to disclosure to data subject requirements may mean that government agencies are not bound to disclose information they are currently bound to disclose under the Access to Information Act. This requires closer scrutiny, and the Press Association seeks liberty to examine and comment on this during oral submissions.
Conclusion and Final Recommendation
In subordinating the practice of journalism to the wide powers of the commissioner and exempting government and its agencies from data-protection standards for certain purposes listed in Part V, the Data Protection Act 2017, as currently drafted, is an instrument that potentially takes privacy rights and freedom of expression away from citizens, including data subjects and data controllers, for purposes not explicitly contemplated in the Memorandum of Objects and Reasons. The act seeks to do that without prior reason, discussion or justification.
However, we submit that it would not be a leap to provide a blanket exemption from the act for the practice of journalism. This would be a tidier and more appropriate amendment. The stringent Jamaican law on defamation already provides a more than adequate framework for protection.
- Dionne Jackson Miller is president of the Press Association of Jamaica. Email feedback to email@example.com.