Appearing before the Home Affairs committee, Christopher Graham said he is 'labouring under the special purposes exemption when it comes to some of the issues relating to the press'
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The Information Commissioner said today his investigative powers are "very easily stymied" by a special exemption that covers journalism. Appearing before the Home Affairs committee to give evidence on phone hacking , Christopher Graham said he is "labouring under the special purposes exemption when it comes to some of the issues relating to the press".
The special purposes exemption for literature, journalism and the arts makes the processing of personal data for the purposes of journalism exempt from the Data Protection Principles (exept principle 7) and other provisions, including the right of the subject of that data to be given information about the processing and to make a subject access request.
According to the exemption, if a claim under it is valid "the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes".
But Graham said today that a lack of resources available to him contributed to the ICO being rarely able to pursue cases in which the exemption is invoked and to be satisfied the case is valid.
"I would have to make a judgement of whether it is good use of my resources," he told the committee.
Asked whether the burden should not be on the party under investigation to prove the issue came under the exemption, rather than the commissioner, Graham said the Information Commissioners Office would still have to brief counsel and go to court, and he would be "operating in the dark ... It would purely be a fishing expedition on my part".
He added that, in terms of being satisfied an issue came under the exemption for journalism, it was increasingly difficult for him to know what constitutes journalism.
"Where does journalism start and stop in the internet age?"
Graham also told the committee today that his office was not particularly concerned with phone hacking, in the sense it was performed by the News of the World , but rather with "blagging" – the practice of misrepresenting yourself in order to obtain information.
"I think the concern about the behaviour of the press is less of a worry to us, although it is obviously before the courts at the moment ... Where I think we come in with relevance to your inquiry is where there is unlawful processing of information obtained by hacking."
He criticised the 2000 Regulation of Investigatory Powers Act (RIPA) , which covers practices like blagging and hacking, claiming it was outdated and incapable of dealing with contemporary issues.
"We have a law and a regime around hacking, blagging, and interception, that is very unclear, very uneven.
"RIPA was drafted for the wiretap age, we're now talking about the internet, deep packet inspection of emails, and online behavioural advertising.
"This is a modern scourge. This is not just about newspapers, this is about dodgy private investigators and child custody battles.
"Legislation that was developed in 2000 to deal with wiretapping is now dealing with much more contemporary problems and we need a contemporary solution to that."
