No journalism exception for massive exposure of personal taxation data

By Dirk Voorhoof, Ghent University, Human Rights Centre.

 After long proceedings at national level, after a preliminary ruling by the EU Court of Justice on 16 December 2008 (Case C-73/07), and after the European Court of Human Rights Chamber judgment of 21 July 2015, the Grand Chamber of the ECtHR on 27 June 2017 finally found no violation of the right to freedom of expression and information in Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland. In essence the case concerns the mass collection, processing and publication of personal taxation data which were publicly accessible in Finland. The combination of a narrow interpretation of (public interest) journalism with a wide margin of appreciation for the domestic authorities led to the finding of a non-violation of Article 10 ECHR. With a reasoning that is very much in line with the Fourth Section’s judgment of 21 July 2015 (see our blog), by fifteen votes to two, the Grand Chamber found that a prohibition issued by the Finnish Data Protection Board that prohibited two media companies from publishing personal taxation data in the manner and to the extent they had published these data before, is to be considered as a legal, legitimate and necessary interference with the applicants’ right to freedom of expression and information. The ECtHR approves the approach of the Finnish authorities denying the applicants’ claim to rely on the exception of journalistic activities within the law of protection of personal data. Less important, but for the full record: the Grand Chamber confirmed the finding of a violation of Article 6 § 1 ECHR (fair trial), as the length of the proceedings at domestic level (six years and six months) was excessive and failed to meet the “reasonable time” requirement, even taking into account the complexity of the case.

Challenges and third-party interventions

That the case was complex and delicate is clearly reflected in the Grand Chamber’s 75 pages judgment, including the dissenting opinions. Alarmed by the narrow interpretation of the notion of journalistic purpose as it was applied in the 2015 Chamber judgment, third-party interventions, inter alia by the European Information Society Institute, ARTICLE 19, the Access to Information Programme and the Hungarian Civil Rights organisation Társaság a Szabadságjogokért, have argued that the Grand Chamber should extend the Article 10 protection to innovative forms of journalism, including (big) data journalism. The present case indeed provided a key opportunity to review the notion of “journalist” or “journalistic purpose”, and the right of dissemination of personal data acquired through access to public documents.

The judgment: approach and general principles

The ECtHR starts by observing that only a very small number of Council of Europe member States provide for public access to taxation data, a fact which raises issues regarding the margin of appreciation which Finland enjoys when providing and regulating public access to such data. While explaining that at the heart of the present case lies the question whether the correct balance was struck between the right to freedom of expression and press freedom under Article 10 ECHR, on the one hand, and the right to privacy under Article 8 ECRH, in the particular context of data protection, on the other, the ECtHR also reiterates that the rights under Articles 10 and 8 of the Convention deserve equal respect (§ 123 and 163). In addition the ECtHR refers to a set of principles related to press freedom, including “the gathering of information (as) an essential preparatory step in journalism and an inherent, protected part of press freedom” (§ 128), and related to privacy protection, emphasising that “the fact that information is already in the public domain will not necessarily remove the protection of Article 8 of the Convention” (§ 134). And it continues: “Article 8 of the Convention thus provides for the right to a form of informational self-determination, allowing individuals to rely on their right to privacy as regards data which, albeit neutral, are collected, processed and disseminated collectively and in such a form or manner that their Article 8 rights may be engaged” (§ 137).

With regard to the question whether the interference with the applicants’ rights was prescribed by law, the ECtHR notes inter alia that both applicants “were media professionals and, as such, they should have been aware of the possibility that the mass collection of data and its wholesale dissemination – pertaining to about one third of Finnish taxpayers or 1.2 million people, a number 10 to 20 times greater than that covered by any other media organisation at the time – might not be considered as processing “solely” for journalistic purposes under the relevant provisions of Finnish and EU law”. The ECtHR is of the opinion that the terms of the relevant data protection legislation and the nature and scope of the journalistic derogation on which the applicant companies sought to rely were sufficiently foreseeable and that those provisions were applied in a sufficiently foreseeable manner, meeting the condition that the interference at issue was prescribed by law as a condition under Article 10 § 2 ECHR. At the same time, there is no discussion that the interference with the applicant companies’ right to freedom of expression pursued the legitimate aim of protecting “the reputation or rights of others”. Therefore, again, the crucial question remained whether the interference at issue was necessary in a democratic society, being sufficiently and pertinently motivated and proportionate in its dimension or impact. The Court reminds that when the balancing exercise with the Articles 8 and 10 has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, “the Court would require strong reasons to substitute its view for that of the domestic courts”. These criteria are: a contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and consequences of the publication, and the way in which the information was obtained and its veracity, and the gravity of the penalty imposed on the journalists or publishers (§§ 165-166).

 Extensive dissemination of personal data is breach of privacy

The Court first notes that it is “unquestionable that permitting public access to official documents, including taxation data, is designed to secure the availability of information for the purpose of enabling a debate on matters of public interest”, and that such access has a constitutional basis in Finnish law and has effectively and widely been guaranteed for many decades. But the Court also points out that “public access to taxation data, subject to clear rules and procedures, and the general transparency of the Finnish taxation system does not mean that the impugned publication itself contributed to a debate of public interest”. It says it is “not persuaded that publication of taxation data in the manner and to the extent done by the applicant companies contributed to such a debate or indeed that its principal purpose was to do so”. The Court also clarifies that the journalistic purposes derogation which is indeed provided in the Finnish Personal Data Act “is intended to allow journalists to access, collect and process data in order to ensure that they are able to perform their journalistic activities, themselves recognised as essential in a democratic society”. The Court however emphasises that a right of access to public documents does not by itself justify the dissemination of these documents or the data they contain: “the existence of a public interest in providing access to, and allowing the collection of, large amounts of taxation data did not necessarily or automatically mean that there was also a public interest in disseminating en masse such raw data in unaltered form without any analytical input” (§ 175). The Court also explains why the massive dissemination of the data was not carried out “solely” for journalistic purposes, and where the applicant companies argued that the public disclosure of tax records enabled the public to observe results of tax policy, the ECtHR is of the opinion that the dissemination of the data at issue rather “might have enabled curious members of the public to categorise named individuals, who are not public figures, according to their economic status” and that this could be regarded “as a manifestation of the public’s thirst for information about the private life of others and, as such, a form of sensationalism, even voyeurism” (§§ 175-177). This finding also further broadens the margin of appreciation for the domestic authorities: because the impugned publication cannot be regarded as contributing to a debate of public interest, nor as a form of political speech, it cannot enjoy a privileged position that traditionally calls for a strict scrutiny by the ECtHR and that allows little scope for restrictions under Article 10 § 2 ECHR.

Next the Court clarifies that the taxation data of 1.2 million natural persons were made public by the applicant media, and that most of the data concerned private persons, and only “very few, were individuals with a high net income, public figures or well-known personalities within the meaning of the Court’s case-law”. Unlike other Finnish publications, the information published by the applicant companies did not pertain specifically to any particular category of persons such as politicians, public officials, public figures or others who belonged to the public sphere by dint of their activities or high earnings or their position.

The ECtHR furthermore confirms that the data were not obtained by illicit means and that they were accurate, but it refers to the companies’ policy “of circumventing the normal channels open to journalists to access taxation data and, accordingly, the checks and balances established by the domestic authorities to regulate access and dissemination” (§ 185). While the information relating to individuals was publicly accessible, under specific rules and safeguards, this did not necessarily mean that the data could be published to an unlimited extent. The Court states that “publishing the data in a newspaper, and further disseminating that data via an SMS service, rendered it accessible in a manner and to an extent not intended by the legislator” (§§ 189-190).

While the ECtHR reiterates that “the gathering of information is an essential preparatory step in journalism and an inherent, protected part of press freedom”, it is of the opinion that the Finnish authorities “did not seek to interfere with the collection by the applicant companies of raw data, an activity which goes to the heart of press freedom, but rather with the dissemination of data in the manner and to the extent outlined above”. Therefore the applicant companies were not prohibited from publishing taxation data or from continuing to publish their magazine, “albeit they had to do so in a manner consistent with Finnish and EU rules on data protection and access to information”. The ECtHR concludes with regard the gravity of the interference with the applicants’ rights that although “the limitations imposed on the quantity of the information to be published may have rendered some of their business activities less profitable”, this “is not, as such, a sanction within the meaning of the case-law of the Court” (§ 197).

Wide margin of appreciation

In line with its approach set out in Animal Defenders International v. the United Kingdom, taking into consideration the quality of the parliamentary and judicial review, and referring to the exceptional situation in Finland with regard the public accessibility of personal taxation data, the ECtHR leaves the Finnish authorities a wide margin of appreciation in deciding how to strike a fair balance between the respective rights under Articles 8 and 10 of the Convention in this case. This brings the vast majority of the Grand Chamber to agree with the approach by the Finnish authorities, relying in particular on their findings “that the publication of the taxation data in the manner and to the extent described did not contribute to a debate of public interest and that the applicants could not in substance claim that it had been done solely for a journalistic purpose within the meaning of domestic and EU law”. The Grand Chamber discerns no strong reasons which would require it to substitute its view for that of the domestic courts and to set aside the balancing done by them, while it is satisfied that the reasons relied upon were both relevant and sufficient to show that the interference complained of was “necessary in a democratic society”. This leads the ECtHR to the final conclusion that the Finnish authorities acted within their margin of appreciation in striking a fair balance between the competing interests at stake. Therefore the ECtHR finds that there has been no violation of Article 10 ECHR.

Dissent and comment

The Grand Chamber essentially based its conclusion on the finding that no sufficient journalistic input or public interest could justify the publication of the personal taxation data at issue and that the interference with the rights of the applicants’ media had merely an impact on the applicants’ economic or business interests. In finding no violation of the right to freedom of expression and information, the ECtHR not only accepts a restrictive interpretation of the notion of journalistic activity, it also reduces drastically the impact of the right to information of public interest. The controversial character of this approach by the Grand Chamber is robustly reflected in the dissenting opinion by judge András Sajó, who acted as president of the Grand Chamber, and judge Işıl Karakaş:

“Here, under the guise of ill-defined and diffuse privacy interests, considerations of a general interest in taxpayers’ privacy are being used, firstly, to limit a law that made such information public, and secondly, to curtail the right of journalists to impart information to the public. What is worse, this restriction was not examined under the level of stricter scrutiny required by Article 10 (2). We lament the consequent curtailment of the right of journalists to communicate accurate information of important public significance, and we therefore dissent.”

The question remains what the problem is of publishing in the media data which have originally been disclosed by the authorities and are publicly accessible to everyone. And where is the “pressing social need” behind the prohibition of data from public records, while there is no indication that the publication of these data caused harm or risked to cause damage to individual persons or to society. Furthermore, it is unclear for what reasons a more limited publication of the taxation data in other media is acceptable under the exception of journalistic activity, and why precisely, from what extent onwards or under what type or form of journalistic presentation, the publication of the taxation data becomes illegal. It is also remarkable that the judgment refers to the lack of “analytical input” by the publications at issue, while former case law of the ECtHR does no require journalists, media or other public watchdogs to produce analytical added value in order to be able to rely on the protection under Article 10 ECHR when publishing, broadcasting or disclosing information. At several occasions the ECtHR has emphasised that it is not the task of the ECHR, neither of the national courts, “to substitute its own views for those of the press as to what technique of reporting should be adopted”.

The Grand Chamber judgment also contains some worrying considerations that may curtail some types of journalistic practices or media freedom, such as the qualification of the published data at issue, enabling “the public’s thirst for information about the private life of others and, as such, a form of sensationalism, even voyeurism”. The circumstance that information or journalistic content can be perceived as sensationalist or can be used for voyeuristic purposes by some members of the public, does not eliminate the public interest of the published information. The reference to “voyeurism” is also somewhat far fetched, as the public taxation data do not really reveal salacious intimate aspects of private life. Of a problematic nature is also the Grand Chamber’s consideration that the applicant’s media have rendered the data “accessible in a manner and to an extent not intended by the legislator”. There are undoubtedly many situations in which journalists or media succeed to publish, disseminate or disclose information in a manner and to an extent that was “not intended by the legislator” or other regulatory authorities. At the same time the Grand Chamber missed the opportunity to be inspired by the clear intention of the European legislator to broaden the journalism exception, as reflected in the EU Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), which entered into force on 24 May 2016. Article 85 of the Regulation, which will replace the journalistic purposes derogation in Article 9 of the Directive, no longer refers to the exception “solely for journalistic purposes”, but obliges the Member States to “reconcile the right to the protection of personal data pursuant to this Regulation with the right to freedom of expression and information, including processing for journalistic purposes”. Recital 153 of the Regulation 2016/679 clarifies that in “order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary to interpret notions relating to that freedom, such as journalism, broadly”. The Grand Chamber’s judgment goes in the opposite direction, by accepting, endorsing an even developing a narrow notion of journalism.