What happens when people regret comments they've left online? Legally, it comes down to whether they count as journalism
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Tim Gough
guardian.co.uk, Thursday 4 April 2013 12.42 BST
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'When someone leaves a comment on an article, their personal data is being processed if the person is identifiable to the audience or to the organisation.' Photograph: Kacper Pempel/Reuters
A politician makes a joke which she later regrets. A footballer says something on the pitch which he quickly realises was unfortunate. A person leaves a comment beneath an article which he then wishes he hadn't made. All can now be found reported online accurately. All of these people have all expressed an opinion they later regret. Which of them have the legal right to have their words deleted upon request?
Current UK data protection law requires that for the use of personal data by an organisation to be lawful that it meets at least one of a number of criteria (legitimising conditions). They include consent, legal obligation, to fulfil a contract with an individual, to protect life, and so on. Consent is the most relevant here – consent can be given, and it can also be taken away. For example, you can agree to receive marketing emails, but you must be given the opportunity to unsubscribe from them too, as email marketing is consent driven by law.
But does this give the commenter a right to have a comment deleted by withdrawing their consent? Probably not.
Journalism (as defined in the Data Protection Act) is exempt from the requirement to meet one of the "legitimising conditions", and for a number of reasons. Journalism is not a consent-based process under the Data Protection Act. Someone providing their opinion is not, strictly speaking, consenting to their personal data being published under this particular piece of law. It would be impossible for journalists (or those conducting acts of journalism) to ask for consent from the individual for every opinion they gather, for every speech they wish to report, and that's without even considering the requirements of investigative journalism.
When someone leaves a comment on an article, their personal data is being processed if the person is identifiable to the audience or to the organisation. They may agree to the terms of use of the site which explains how their data will be used, and may assign their rights to the news organisation. But what they are not doing is providing their consent for the information to be published for data protection law purposes, because it's not needed. This does not mean an organisation has to reject all requests for deletion, but it has the choice whether to action the request.
So the crux of the issue here is whether providing an opinion beneath an article is journalism. Does it matter whether the opinion is given to a journalist and included in the article, or is offered in the comments beneath? In the digital media age, are acts of journalism only committed by journalists, or do we commit acts of journalism when we leave our opinion online? Or does it depend what the article itself is about?
So, should a commenter have an automatic right to have their opinion deleted? Should the footballer have the right to delete the slur he made on the pitch? Should the politician be allowed to have her bad joke erased? I would guess that most people would sympathise with the first request more than the other two, even though the person has been informed fully how their data will be used, has had an opportunity to craft their own words, and it is reported word-for-word. Not that it matters – what we have to ask ourselves is, is it journalism?