Page 163 - Law and the Media

Law and the Media
In a pilot case under the DPA, Norman Baker, the Liberal Democrat MP for Lewes,
successfully applied his right under the DPA to force MI5 to open its top-secret files for the
first time. Following an original request from Baker to see his file, Jack Straw, then Home
Secretary, issued a certificate exempting MI5 under the DPA from having to reveal whether
it even held the information. Baker successfully argued that this was ‘unreasonable’. The
certificate was quashed by the Data Protection Tribunal, which applied the ‘reasonableness’
test applicable in judicial review cases and the ‘proportionality’ test required under the DPA
(contained in the 8th principle) and found that the exemption was ‘wider than is necessary
to protect national security’.

Even though the decision has been termed a ‘landmark ruling’ because MI5 can no longer
rely on a blanket policy of refusing to confirm or deny if it holds particular information on
individuals, it seems likely that the decision will not give terrorists immunity from
investigation. Nor will it unduly hamper the security services, which will still be able to
refuse access or even refuse to make comment if to do so would ‘actually threaten national
security’. The main difference brought about by the decision is that these considerations will
have to be made on a case-by-case basis.

8.5 The future

The recent developments by the English courts may only be the thin end of the wedge. The
courts may interpret the laws of privacy further to cover an even wider range of
scenarios.

8.5.1 Companies

Companies, businesses and firms may one day be able to assert a right of privacy. Although
the European jurisprudence has not expressly recognized that firms may be able to invoke the
right to privacy, the European Court has found that privacy should not be excluded in relation
to professional or business activities. In Niemitz v Germany (1992), the court held there
was:

. . . no reason in principle why this understanding of the notion of ‘private life’
should be taken to exclude the activities of a professional or business nature since
it is, after all, in the course of their working lives that the majority of people have
a significant, if not the greatest opportunity of developing relationships with the
outside world.

In that case, the European Court found that a search of a German lawyer’s office for
incriminating evidence conducted by the German police in the absence of any independent
observer constituted a violation of Article 8. Although it remains to be seen whether firms
and companies will be able to assert a right to privacy, there are likely to be imminent and
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