BILETA Response to ICO Consultation on the Draft Updated Guidance on the Research, Archiving and Statistics Provisions

This response, submitted by the British and Irish Law, Education and Technology Association (BILETA), expresses "grave concern" regarding the ICO’s draft guidance on the Research, Archiving and Statistics (RAS) provisions following the Data (Use and Access) Act 2025. BILETA argues that the guidance, as drafted, risks creating a significant "regulatory chill" by imposing highly restrictive and peremptory obligations on academic and journalistic researchers.

The core of the critique focuses on the guidance’s failure to recognize the legal pre-eminence of the Special Expression derogation (journalism, academia, art, and literature). BILETA highlights a dangerous shift from the 2022 permissive language to a 2026 draft dominated by mandatory "musts," which incorrectly suggests that the RAS regime is a mandatory cage rather than an optional toolkit.

Key objections include:

The Ghaidan Mandate: Failure to interpret the UK GDPR in a way that is compatible with Article 10 ECHR (Freedom of Expression), as required by the Human Rights Act 1998.

Biomedical Bias: Critiquing the application of strict "biomedical-style" ethics—such as mandatory anonymization and non-particularity—to the humanities and social sciences, where identifying public figures is often essential to the research.

Operational Gaps: The absence of worked examples for legal and historical scholarship and the lack of guidance on jurisdictional friction in UK-EU research collaborations post-DUA Act 2025.

BILETA concludes that the final guidance must be cross-referenced with the Journalism Code of Practice to ensure that academic freedom and expressive rights are protected from unnecessary bureaucratic encroachment.