Guest post by M. Schaap-Rubio Imbers, PhD Candidate international public law, Erasmus School of Law
On the 8th of November 2016, the ECtHR’s Grand Chamber delivered its judgment in Magyar Helsinki Bizottság v Hungary. The applicant NGO (Magyar Helsinki Bizottság) complained that the refusal of police departments to disclose information on the appointment of public defenders upon their request represented a breach of its rights as set out in article 10 ECHR. The Court held by fifteen votes to two that there has indeed been a violation of article 10. This judgment is the latest ruling on access to public interest information, and as such a very welcome elaboration of the Court’s position on the right of access to public interest information under article 10 ECHR.
Considering that others have already provided a good overview of the background and what is at stake in this judgement (here) and provided a general discussion of the case at hand (here), in this contribution I will focus particularly on the criteria established by the Court for access to public interest information under article 10 ECHR.
The case focused on the refusal by two police stations to disclose the names of the public defenders appointed by the police requested by the applicant NGO, Magyar Helsinki Bizottság. The NGO wanted to assess whether “there existed discrepancies in police departments’ practise in appointing defence counsel from the lists provided by the bar associations” (§16). The two police stations – the other 22 had provided the information – refused to provide the information as the “names [of the public defenders] constitute private data, which are not to be disclosed under the law” (§19). The NGO challenged this refusal domestically; the Supreme Court ruled in favour of the police departments stating that “The names and numbers of appointment of defence counsel constitute personal data. (…) the respected police departments cannot be obliged to surrender such personal data” (§30).
Applicability of article 10: the interpretative approach of the Court (§117-180)
The Court refers to articles 31-33 of the Vienna Convention on the Law of Treaties as the framework for interpreting (the scope) of article 10 ECHR. Even though in this blogpost I will not delve into the details of the interpretative methodology used by the Court it should be noted that the Court extensively discusses its case law on the matter, but also relevant developments within and outside the Council of Europe, including the travaux preparatoires of the ECHR, case law of other human rights bodies; and conducts a comparative analysis of relevant domestic legislation (§118-148). The Court concludes by stating:
…since the Convention was adopted the domestic laws of the overwhelming majority of Council of Europe member States, along with the relevant international instruments, have indeed evolved to the point that there exists a broad consensus, in Europe (and beyond) on the need to recognise an individual right of access to State-held information in order to assist the public in forming an opinion on matters of general interest (…) the Court does not consider that it is prevented from interpreting Article 10 § 1 of the Convention as including a right of access to information. (§148)
The Court sums up ‘the classic principles’ (§156) as follows:
- ‘The right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him’
- ‘The right to receive information cannot be construed as imposing on a state positive obligations to collect and disseminate information of its own motion’
- ‘Article 10 does not confer on the individual a right of access to information held by public authority nor oblige the Government to impart such information to the individual’.
These principles derive from the established case law of the Court stated in Leander and have been referred to by the Court ever since. However, the question was always how to reconcile these three ‘principles’ with the position of the Court that it is ‘moving towards the recognition of a right to public interest information’ (first stipulated in 2009 TSAZ, §35).
In Magyar Helsinki Bizottság, the Court clarifies that there is indeed room for a right of access to public interest information while still conforming to the Leander principles:
…in circumstances where access to information is instrumental for the exercise of the applicant’s right to receive and impart information, its denial may constitute an interference with [article 10 ECHR]. (§155)
The Court establishes that a right to public interest information indeed arises when:
- Disclosure of information has been imposed by a judicial order which has gained legal force.
- Circumstances where access to information is instrumental for the individual’s exercise of his or her right to freedom of expression, in particular “the freedom to receive and impart information”
The Court then stipulates four ‘threshold criteria’ to better define the circumstances under which a denial of access to information constitutes an interference in a given case (§156):
a. The purpose of the information requested: contribution to a public debate
b. The nature of the information sought: public interest nature
c. The role of the applicant: social watchdogs and alike
d. Whether the information is ready and available to the public authorities
Ad a: Access to the information would be considered necessary for the Court if ‘withholding it would hinder or impair the individual’s exercise of his or her right to freedom of expression (…), including the freedom to receive and impart information and ideas’ (§159). In other words, the information should be requested in order to contribute to the public debate. Note here the difference with for instance the IACtHR (Claude Reyes v Chile) which recognizes a right to public interest information for everyone without a necessity to state the reason for which information is sought.
Ad b: The information needs to be of public interest. What constitutes public interest information depends on the circumstances of the case according to the Court, but as general guidance:
the public interest relates to matters which affect the public to such an extent that it may legitimately take an interest in them, which attract its attention or which concern it to a significant degree, (…) matters which are capable of giving rise to considerable controversy, which concern an important social issue, or which involve a problem that the public would have an interest in being informed about. (§162)
Ad c: The ECtHR has a long established practise of according special protection under article 10 ECHR to the press in a democratic society. It is in this light that the Court examines “whether the person seeking access to the information in question does so with a view to informing the public in the capacity of public “watchdog”’(§168). In previous cases the Court had established that NGOs as social watchdogs should be offered similar protection as is offered to the press (Youth Initiative for Human Rights; OVESSG). Similarly, the Court has recognized the important role of academic researchers (Gillberg; Kenedi). In Magyar Helsinki Bizottság, the Court adds that ‘the function of bloggers and popular users of the social media’ may also be recognized as warranting similar protection under article 10.
Ad d: The information requested should – in principle – be ready and available to the public authorities, and thus not require any collection of data by them (§169-170). This criterion is the second point on which the Court takes a different position to other IHRL bodies (e.g. UN HRC, General Comment 34, §19). One explanation for the difference can be found in the absence of the word ‘seek’ in article 10 ECHR, whereas other IHRL instruments include such a word, and as such explicitly recognize positive obligations for authorities to collect information and in some cases even a duty to actively disseminate public interest information.
Having set out when there exists a right to access information under the Convention, the Court applies these criteria to the facts of Magyar Helsinki Bizottság and concludes that there was an interference with article 10 ECHR:
the information sought by the applicant (…) was necessary for the completion of the survey on the functioning of the public defenders’ scheme being conducted by it in its capacity as a [NGO], in order to contribute to discussion on an issue of obvious public interest. By denying it access to the requested information, which was ready and available, the domestic authorities impaired the applicant NGO’s exercise of its freedom to receive and impart information, in a manner striking at the very substance of its Article 10 rights. (§180)
The Court thereafter examines whether the interference was justified, and concludes that the refusal to disclose the information was not necessary in a democratic society. Even though the information concerned personal data, it did not concern information outside the public domain. The Court therefore does not consider it necessary to engage ‘in a balancing exercise’ of the rights of the public defenders under article 8 ECHR and the rights of the NGO under article 10. In other words, the Court does not deem article 8 ECHR applicable to the case (§195). This is interesting considering the extensive case law of the Court on the right to personal information in the context of article 8 ECHR and one may wonder whether it is not a missed opportunity to further define the interrelation between article 8 and 10 in the context of informational rights.
Even though the Court recognizes only a limited right to public interest information in Magyar Helsinki Bizottság, the judgment is a huge step forward. Although the five principles were already put forward in previous cases, they were never explicitly used to draft generalizable parameters of a right to public interest information. Finally there are clear criteria indicating under which circumstances a right to access public interest information exists under article 10 ECHR. Interestingly, the threshold criteria formulated by the Court seem not to be exhaustive and as such the Court seems to keep the door open for other circumstances that might warrant access to information under article 10 ECHR. Time will tell how the right will be further construed.
Even though the scope of the right can still be criticized, this has to be done in the context of the interpretative approach used by the Court. The methodology used by the Court definitely triggers further debate, exemplified by the dissenting and concurring opinions of several judges discussing the approach adopted, and by the critique of the intervening government (UK) that the Court is exceeding its mandate by engaging in judicial legislation.