By Vivian Wilson – Thompson Rivers University 2L JD Student
On August 2, 2015, International Association of Athletics Federations (IAAF) blood test data was leaked and published by German Broadcaster, ARD, and British newspaper, The Sunday Times. These media outlets claimed that the data was leaked by a whistle-blower who was troubled by the content of the blood sample database. However, after conducting internal investigations, the IAAF stated that there was no whistle-blower and the data had been illegally obtained.
The leaked blood test data, purportedly containing ‘suspicious’ results, has put clean athletes, like Paula Radcliffe, in the spotlight and forced them to defend themselves by publicizing additional personal information, such as medical reasons for fluctuations in blood test results. The Sunday Times allegedly told athletes that if they failed to consent to the publication of the data, and did not disclose further information to show they were not guilty of cheating, they would cast doubt on their innocence. However, as Radcliffe stated in response to the Sunday Times coverage, providing additional personal information to explain the fluctuations in blood data leads to widespread media coverage of athletes’ names in connection with allegations of doping, causing further damage to their reputation, despite their innocence.
Under British law, blood test results are categorized as ‘sensitive personal data’ and are protected by the Data Protection Act 1998 (DPA). Also, the World Anti-Doping Agency (WADA) provides an International Standard for the Protection of Privacy and Personal Information, a mandatory international standard that all relevant people and organizations must adhere to, which gives a certain level of protection over privacy and personal data in jurisdictions where data protection requirements are less strict.
Sports law commentators, Abby Brindley and Edward Carder, note that if the Sunday Times held the blood data in the United Kingdom, they had a duty to comply with the DPA. Section 32 of the DPA has an investigative journalism exemption from those provisions that would prevent people from processing information for the purposes of investigative journalism where there is a reasonable belief that the publication is in the public interest. Further, the European Convention of Human Rights provides that journalists are able to process personal data without an individual’s consent where there is a public interest. These exceptions to the DPA and Article 8 of the European Human Rights Convention – the right to respect for private and family life – raise the question, is there a public interest here sufficient to allow for the Sunday Times and ARD’s disclosure of the blood data?
Doping in sport is typically thought of as the worst kind of cheating. It is sanctioned harsher in sport than acts like domestic abuse and other felonious behavior committed by athletes, but is this view warranted? What public interest is served here by exposing athletes’ private information, and in some cases forcing athletes to publicize additional personal information in order to clear their names?
The sensitive nature of cheating in sport and the damage that doping allegations can do to athletes’ reputations and earning potential, as well as their potentially devastating effect on the fans of implicated athletes, suggest that there is no public interest being served by publishing ‘suspicious’ blood data that casts doubt on the honesty of athletes.
Rather, doping accusations cause social harm by vilifying athletes who inspire and motivate people. For example, during Ben Johnson’s doping scandal, media outlets reported that Johnson left Canada “shattered,” “plunged [the nation] into embarrassment,” and caused his mother a “lifetime of grief and shame.” These media overreactions to Johnson’s doping exemplify the effect that doping scandals have on the public and the athlete’s reputation, and demonstrate the harm caused by allegations of cheating in sport with essentially no foundation in genuine public interest.
In conclusion, the August 2, 2015 publication of IAAF blood data does not serve a public interest but rather the economic interest of the media outlets that publicized the information. Therefore, their actions go against the DPA and the WADA International Standard for Protection of Privacy and Personal Information and should not fall under the journalism exceptions of the relevant UK and European law.