23.04.2020

Shielding the powerful

Heavy-handed legal threats against Labour show up the real effects of data protection legislation, argues Paul Demarty

The leaked report into Labour’s disciplinary proceedings during Jeremy Corbyn’s leadership caused quite a stir within the party - and even within the few column inches not dedicated to the coronavirus pandemic in the bourgeois press.

The initial response from the Labour right and the various diseased apparatchiks accused of sabotage in ‘The work of the Labour Party’s governance and legal unit in relation to anti-Semitism, 2014-2019’ was basically baffled outrage. But the medium-term response looks to be conducted by these people’s legal briefs. A vast train of civil action is grinding up to speed, and heading straight for Labour headquarters.

Mark Lewis - the barrister perhaps best known for his role in exposing the dirty secrets of the Murdoch empire - is one of many people licking their lips at the billable hours to come. He told The Observer that he was in contact with dozens of potential complainants:

There are lots and lots of claims. There are claims under the Data Protection Act, there are claims for breach of confidence or invasion of privacy and there are claims for libel. It is a very lengthy report that mentions a lot of people. I’ve been contacted by 15 people. Each one of them could well have several claims. What is going on is phenomenal. It’s a bit like the soldiers leaving a barracks that they have to desert and setting it on fire.¹

The Observer seems to think this could be a terminal financial challenge to the Labour Party, though scepticism is probably in order on that point. Sure, Lewis’s 15 contacts are unlikely to be the only people spluttering in a lawyerly direction; but the fraction of those with defensible claims will be some distance lower than 100%. Lewis himself is quoted on this point: “If this bankrupts the Labour Party or individuals, so be it. Actions have consequences.” We may assume he is not saying anything his clients would not approve - cab for hire, and all that.

Needless to say, the legal bludgeoning going on restricts what a paper like ours can say about this document. But, of course, the legalities themselves are not without interest.

Libel and privacy

Lewis makes sure he mentions the dreaded L-word - libel. It is well known that English libel laws are an affront to democracy, and indeed their history goes back to the 1690s. At that time, pre-publication censorship laws, which had spanned the Stuart regimes and Cromwell’s protectorate, expired; it was decided by the new royal dynasty that cure was better than prevention in this case. The cure was the charge of ‘seditious libel’, for which one could be condemned to spend some time in the pillory, or even be mutilated. Modern libel proceedings, brought by private individuals, have more in common with that heritage than is commonly acknowledged. It may still be abused by public figures caught in some sin or another (as happened in the cases of the Tory MPs Jeffrey Archer and Jonathan Aitken some years ago).

Yet libel is so much a rich man’s game that it is probably not the real problem. Perhaps Baron McNicol of West Kilbride can make it stick; but many of the lower-level figures traduced in the leaked report will lack the means (you cannot get legal aid for a libel claim). Having all that stuff raked over in open court is not necessarily desirable either.

So that leaves data protection and privacy - both areas of the law considerably tightened up in the last couple of years by the Data Protection Act, which, of course, implemented the notorious General Data Protection Regulation (GDPR) of the European Union.

The problem from this point of view is, first of all, that so many people are named and easily identifiable from the contents of the report, which - having been leaked - leaves our poor bureaucrats subject, in theory, to anonymous abuse, spam and all the rest. Secondly, there is the enormous volume of private communications that have somehow fallen into the hands of our intrepid investigators, which constitutes a breach of privacy with substantial reputational risk.

On the face of it, this sort of protection seems fair enough in general. An example: it seems that a lot of personal account details for the Zoom videoconferencing app, which has rocketed to notoriety in the present situation, are available for sale on the dark web, and by extension so are some number of recordings of intimate conversations between families, lovers and the rest. The stated purpose of the GDPR was to make sure that - if this situation arose due to Zoom’s negligence in securing their back-office systems - meaningful penalties could be levied. While we are on the subject, Zoom has historically sold user data to third-party brokers, which is also a source of controversy today; and the scandalous lack of regulation in this area was, also, in the sights of the EU commissioners.

While it certainly seems that average citizens ought to enjoy freedom from such violations of their private lives, the picture is less clear when it comes to politicians. The tabloid press has long enjoyed a certain level of immunity from censure for exposing the extramarital affairs, drug habits and chemsex parties of MPs, for example. It was notable that, during the Data Protection Act’s progress through the House of Lords, members of that august chamber - no doubt ladies and gentlemen of the utmost probity - attempted to tack on an amendment that would allow people to make subject access requests to the press. In practice, this would have amounted to the abolition of anonymous sources at a stroke. Theresa May’s government - extremely fragile and very dependent on the lukewarm support of the Tory press - rejected the amendment.

Regardless of the legal effectiveness of the claims made against the Labour Party then, their moral effectiveness depends rather on the appearance that these officials were not politicians. There is no public interest defence for data protection violations at law; but there is always, in principle, the possibility of turning any action into something like the McLibel case of the 1990s, in which an overreaction turned into a legal quagmire that exposed both the rapaciousness of McDonalds and the cruelty of English libel law over the course of a decade. The best form of public-interest defence, in that case, was attack.

The basic problem for the would-be complainants, then, is that the content of the document - which, though we, like all other papers, are forbidden from reporting except indirectly - rather implies that, far from being eminently professional employees of a company called the Labour Party, many of them were acting as violently biased political operators (as, of course, was whoever leaked the report).

We should not really complain about this, as such. For it testifies to the fact that the appointed officials of major political parties are expected to carry out the aims of those parties and to be accountable to party bodies. If an official were sacked from Labour central office for being an enthusiastic Tory voter, it is possible that he would have some legal basis for an unfair dismissal claim, but victory in that claim would be self-evidently absurd and a miscarriage of justice. There is no meaningful distinction between such a case and the various individuals concerned trying to bury the report in a sarcophagus of court filings.

Yet this enthusiasm for data protection claims is not merely truculence, or vengeance. It also reflects the poisonous character of political careerism as such. It is said that Tony and Cherie Blair decided that whichever of them looked likelier to succeed at the bar would take the silk, and the other would go into politics. The light-minded assurance that politics is something one might do when one grows up makes a mockery of it; but on no other basis may one legitimately complain that one’s political statements are exposed to the harsh glare of publicity. Those sacked for even the grossest incompetence in a routine job should not thereby have their lives permanently ruined; but politics is not a routine job.

Transparency

At least, it is not from an authentically socialist point of view. Yet it must be said that the left has a less than sterling record here. We could mention the Socialist Workers Party, which turned a scandal over rape allegations into an existential crisis by taking revenge on the whistleblowers who brought it to public attention. But the rot has set in far more widely, and far too often robust and searching political criticism is ruled out of order on the basis that ‘nobody would put up with that kind of treatment in the workplace’.

Transparent governance - in the organisations of the workers’ movement and in society at large - is in fact a precondition for working class rule. Meaningful political choices depend on those standing for election being subject to extensive challenges to their ideas and character that would, yes, be thought rather impolite in most other social settings. It also demands effective parties, where the political leadership has some hope of their policies being carried out - which means that allegations of sabotage must be taken seriously, and discussed openly. That means, more or less, the abolition of the ‘career in politics’.

There now exists a legal regime that obstructs that - which brings us back to the law itself. We must confront the possibility that extensive data protection legislation is, in practice, reactionary. Even if it has the effect of providing some protection for private citizens against the negligence and manipulative data-hoarding of tech companies, then it is not worth the price of shielding the powerful (or, in this case, the grunt-level factotums of the powerful) from exposure to political sunlight.

It is doubtful, of course, that it even does have such an effect, since the better lawyers are almost by definition on the side of the rich. The solution to the problem of mass data gathering is the destruction of the tech monopolies altogether, and the socialisation of their useful functions; not among those functions, naturally, is intrusive advertising. Google and Facebook and the rest have made their peace with the GDPR; they carry on more or less regardless. In the meantime, an army of sweaty-palmed barristers gets ready to sue the Labour Party out of existence.

1. . theguardian.com/politics/2020/apr/19/labour-party-financial-peril-keir-starmer-members-leaked-report.↩︎