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Data Protection Act could have 'chilling effect' on journalists, says RSF

Thursday, May 17, 2018

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MEDIA advocacy group Reporters Without Borders (RSF) is calling for Jamaica's proposed Data Protection Act to be amended to include an explicit blanket exemption for journalists.

In a letter addressed to Joint Select Committee of Parliament Chairman Dr Andrew Wheatley, which was accessed on the France-based group's website yesterday, RSF said the Bill's current version could have a chilling effect when applied to journalists that would far outweigh its benefits.

In the letter RSF North America Executive Director Margaux Ewen said while the group did not dispute the existence of this Bill, which is meant to protect the private data of consumers, Ewen said the Bill does not adequately distinguish gathering “data” for journalistic activities from gathering data for regular commercial purposes.

“We acknowledge and appreciate that the drafted legislation considers press freedom, as indicated by section 37, which exempts journalists from a number of provisions data controllers — those who obtain, process, or use data — are obliged to follow,” the executive director said. “However, we believe the Bill should clearly exclude journalistic activity from its scope.

“A clear blanket exemption for journalists should be provided instead of a handful of provisions from which journalists are exempt,” Ewen said.

According to RSF, an international non-governmental organisation dedicated to defending press freedom and freedom of information, without a blanket exemption, the Data Protection Act as it is currently written is broadly worded and potentially threatening for journalists and media outlets.

“It says it aims to protect 'sensitive personal data', including 'political opinions, philosophical beliefs, religious beliefs or other beliefs of a similar nature', all of which are examples of subjects journalists focus their reporting on,“ Ewen said in the letter. “How can journalists report on matters of public interest and hold those in power accountable under such a law?

“In addition, the Bill gives the power to enforce, exempt, and penalise data controllers — such as journalists — to a commissioner who 'shall act independently' and 'shall not be subject to the direction or control of any person or other entity'. While the notion of independence from political interference is commendable the Bill doesn't identify checks and balances, thus raising the concern that the commissioner has too much power to decide how this legislation would apply to journalists,” Ewen said.

The executive director said, too, that the Bill outlines a number of obligations placed on data controllers that, if applied to journalists or media outlets, could interfere with journalistic activities. In addition to submitting an annual assessment of all the data that data controllers have collected or obtained, section 22 of the Bill says data controllers must obtain data fairly, legally and directly from the data subject, and that the subject must consent prior to the processing of “personal data” or “sensitive personal data”, Ewen continued.

“These requirements are unacceptable when applied to journalistic activities and could make investigative reporting nearly impossible. Submitting an annual assessment of all data obtained by a news outlet, as expected under section 47 of the Bill, would be immensely burdensome, especially on freelance journalists or smaller media organisations, and it is unrealistic to ask a journalist to obtain all data on a given subject fairly and with the consent of the subject. The implications this would have for news-gathering and for the role of whistleblowers — who are almost never authorised to disclose information — could be detrimental to the future of journalism in Jamaica,” Ewen pointed out.

The executive director also pointed out that the Bill's commissioner has broad enforcement powers, including section 46, in which data containing opinions must be destroyed if the commissioner decides those opinions are based on inaccurate data.

“Such an enforcement power can be dangerous in its subjectivity and may discourage or prevent journalists from writing about topics that don't fall in line with the commissioner's political leanings, beliefs, or biases. And while the Bill instructs the commissioner to consider 'individual damage or distress' when deciding whether to use its enforcement powers, it doesn't define these terms, nor does it direct the commissioner to weigh this against the public's interest in press freedom,” Ewen contended.

In addition to the other concerns outlined, Ewen said the harsh penalties journalists could face for violating certain provisions — which can include millions of dollars or several years in prison — illustrate the potentially devastating impact the Data Protection Act could have on Jamaica's media environment.

The executive director also said the group remains available to discuss any questions or concerns Wheatley might have.

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