The Government has backed down over its plans to introduce jail sentences of up to two years for those who breach data protection laws by dealing in or obtaining personal information.
It has tabled two amendments to the Criminal Justice and Immigration Bill, currently going through the House of Lords, which will keep the penalties in the Bill, but delay their implementation.
Clause 76 of the Bill was intended to amend the Data Protection Act 1998 to introduce jail sentences of up to two years for those convicted of unlawfully obtaining and misusing personal data. At present such offences carry a maximum penalty of an unlimited fine.
But on Friday junior justice minister Lord Hunt of Kings Heath tabled amendments to the Bill which would delay implementation of the prison sentences, and introduce a new defence for journalists.
Media organisations, including national and regional newspaper groups, magazines and broadcasters across the UK, have been lobbying the government on the issue since Information Commissioner Richard Thomas first published a report entitled What Price Privacy? in May 2006.
Thomas has consistently campaigned for tougher penalties for those who deal in personal information, saying that fines were not a sufficient deterrent.
But the media organisations responded by arguing that prison sentences would be a disproportionate penalty for journalists who obtained information in the belief that it would or could expose wrongdoing or corruption, and would have a chilling effect on investigative journalism, thereby breaching their right to freedom of expression under Article 10 of the European Convention on Human Rights.
Under the amendment, which replaces the original Clause 76, the Justice Secretary will have the power to make an order to amend the Data Protection Act to introduce prison sentences for those who breach section 55 of the Act by unlawfully obtaining personal data.
But before making such an order, he must also consult the Information Commissioner, such media organisations he considers appropriate, and such other people he considers appropriate.
If the Justice Minister were to make such an order, it would only come into effect if approved by an affirmative resolution by both Houses of Parliament.
A second amendment introduced by Lord Hunt, which would follow immediately after the new Clause 76 of the Bill, introduces a new defence of having acted for the purposes of journalism or other special purposes, with a public interest element.
It will introduce into section 55 (2) of the Data Protection Act 1998 a defence that a person who obtained personal data acted for the special purposes, with a view to the publication by any person of any journalistic, literary or artistic material, and in the reasonable belief that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest.
The Information Commissioner’s Office said: “The prospect of unlimited fines has not deterred people from engaging in the illegal market in personal information. The government had recognised that a custodial sentence – included in its Criminal Justice and Immigration Bill – was needed to deter those who steal data.
“The Information Commissioner is pleased that the government has apparently resisted substantial pressure to abandon clause 76 of the Criminal Justice and Immigration Bill.
“Although of course we would have preferred the clause to have remained unchanged, we understand that the Justice Secretary will be able to introduce prison sentences if illegal activity continues.
“Our aim has always been to deter and this will now be a powerful Sword of Damocles hanging over the heads of anyone involved in obtaining personal data.
“The Information Commissioner strongly values press freedom and freedom of speech, and hopes that all journalists will steer well clear of the sort of practices which – in the words of one newspaper – will ‘poison the well for all journalism’.
“Stealing people’s personal details remains a serious criminal offence.
“The ICO will continue to educate and inform to help protect the public’s personal information, working constructively with the key organisations whose databases are most at risk from the blaggers.
“We will be watching the blagging market closely, will prosecute any case supported by evidence and will highlight any future breaches of section 55 of the Data Protection Act to Ministers and to Parliament.”
In October last year, in his speech on Liberty, Prime Minister Gordon Brown said he intended to remove barriers to investigative journalism.