The Press Association of Jamaica (PAJ) on Tuesday called for the practice of journalism to be exempted completely from the provisions of the Data Protection Act, now being examined by a Joint Select Committee of Parliament.
The PAJ had several problems with the Bill, albeit that section 37 exempts journalism from some provisions of the data processing regime.
The concerns, outlined by PAJ President Dionne Jackson Miller in her appearance before the Joint Select Committee, are that: enactment of the Bill in its current form is likely to generate challenges to publication of important stories which will necessitate expensive and time-consuming court proceedings; attempts will be made to use the courts to impose prior restraint – preventing the publication of material, which is inimical to freedom of the press; decisions under the Act are those of the all-powerful Data Commissioner, an agent of the State
“The PAJ took two approaches to its presentation,” explained Jackson Miller.
“On the one hand, our preferred and overarching recommendation is for journalism to be exempted entirely from the provisions of the Act. Having said that, however, we also drilled down into the specific provisions we find problematic, and made recommendations for amendment of each of those,” she said.
Jackson Miller told the Committee that, although the recommendation that journalism be exempted entirely sounds far-reaching and bold, it is not so in actuality, for two reasons.
The first is that when one examines what the Act would be trying to achieve in relation to the practice of journalism, it would be to ensure responsible practice of journalism in the public interest.
“The PAJ maintains the Jamaica’s stringent defamation law regime already addresses this issue, and there is therefore no need for additional legislative restrictions,” Jackson Miller explains.
The second reason is that under the Bill, as it exists, so-called “special measures” activities, journalism, and literary and artistic pursuits, are already exempted from significant and substantial portions of the Act, namely all the data protection standards, except standard 7, and sections 6, 10, 12, and 13 (3) and (4).
“Therefore, it really wouldn’t be a leap to exempt journalism entirely,” Jackson Miller contends.
Despite the existing exemptions, the PAJ said it still has concerns about sections 15 and 16 of the Bill which require registration of data controllers, and give the Minister the power to decide who should not be registered with the only criterion being “processing …unlikely to prejudice the rights and freedom of data subjects.”
The PAJ, she said, regards this as having the potential to provide a “Big Brother” type of oversight which is likely to be inimical to investigative journalism.
“We recommend that journalism be exempted from these sections, and that consideration be given to stipulating specified categories of data processors to be registered.”
Section 19 is also problematic, she said, with regard to "specified processing", being processing 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 concerns cited are the extreme subjectivity of terminology, and the lack of a public interest test.
The PAJ regards it as being unacceptable to place this type of decision in the Minister’s hands, and believes that it creates a situation where the political directorate is being given power to stymie investigative journalism.
Its recommendation therefore is that journalism be exempt from section 19.
“We also have concerns about the tremendous power the Data Commissioner will wield, and the establishment of that office as a body corporate,. We believe a more suitable iteration would be as a Commission of Parliament, accountable to and responsive to Parliament,” she added.
The inclusion of the world “only” in section 37 (1) is problematic for the PAJ as well. This is the section that provides exemptions for journalism but speaks of those exemptions applying to “Personal data which are processed only for the special purposes…”
This creates the risk that where data are held by organisations for more than one purpose, the exemption cannot be claimed, according to the PAJ President.
The PAJ is therefore recommending the removal of the word “only” wherever it appears in connection to journalism and the other special purposes.
“We believe the Bill gives the Commissioner a superintending role in relation to journalism in determining whether publication would be in the public interest. The Bill arrogates powers of the court unto the Commissioner, and the Commissioner, an agent of the state, is given wide and deep powers to censor and kill publications about other agents of the state,” the PAJ warns.
This, the PAJ contends, is “an unhealthy situation for democracy, and deeply problematic for a free press.”