It is my pleasure to introduce a guest post in the form of a commentary by professor Renata Uitz of Central European University. She has written a commentary on the recent case of Magyar Helsinki Bizottság v. Hungary, on which the European Court issued its judgment two weeks ago. Amongst others, it further clarifies the notion of "public watchdogs". Here is her guest commentary on this important case on access to information:
Protecting Access to Information Under Article 10: A Small Step With Major Implications
Renata Uitz
On November 8, 2016 in the judgment of Magyar Helsinki Bizottság v.
Hungary, the Grand Chamber consolidated the jurisprudence of the Court on
access to information under Article 10. In addition, the judgment sheds light
on the interpretation of the Convention in cases where the text is silent on a
particular issue. Finally, the case allows some insight into how the ECtHR may
build on disagreement in a member state concerning the Court’s role in
developing European human rights standards. One of these points would be reason
enough to make a judgment important. All three of them in a single case may
well make it matter for many years to come.
Background
The facts of the case concerned the rejection by the police of an access to information request submitted by the Magyar Helsinki Bizottság (the Hungarian Helsinki Committee) under the
Hungarian act on data protection and access to information. The denial of access was later
confirmed by the Supreme Court. The applicant is a much respected civil rights
organization which has brought several cases of its clients via strategic litigation
before Hungarian courts as well as before the European Court. This particular case, in which
they eventually became the applicant themselves, they did not start as one. In fact, once
the case was accepted by the Grand Chamber legal counsel for a specialized
freedom of information NGO, atlatszo.hu
joined forces with the Helsinki Committee’s lawyers before the ECtHR.
The Helsinki
Committee participated in a European research project on transparency
in the appointment of public defenders, for which they needed data on the
manner of appointment of public defenders in Hungary. While several police departments
complied with their request under the 1992 act on access to information, some refused,
arguing that the names of public defenders were personal data which could not
be disclosed in the public interest. One such police department was also the
home of a large refugee camp in Hungary, so data from that department were
particularly interesting for the research project on public defenders. Upon
appeal the Hungarian Supreme Court ruled that a “defence counsel cannot be regarded as ‘other persons
performing public duties’, since no powers or competences defined by law are
vested in them.”
Article
10 and Access to Information
At the time when
the Helsinki Committee turned to the European Court in
2011, the existing case-law already suggested that civil society organizations –
similarly to journalists – qualified as watchdogs in the context of
Article 10. In a similar case, Társaság a Szabadságjogokért
v. Hungary the Court had already found that the following:
"The Court has
consistently recognised that the public has a right to receive information of
general interest. Its case-law in this field has been developed in relation to
press freedom which serves to impart information and ideas on such matters. In
this connection, the most careful scrutiny on the part of the Court is called
for when the measures taken by the national authority are capable of
discouraging the participation of the press, one of society’s “watchdogs”, in
the public debate on matters of legitimate public concern, even measures which
merely make access to information more cumbersome." (para. 26, internal references
omitted)
Compared to this and similar cases, the complaint of the
Helsinki Committee did not raise a novel issue, although the section judgment
in Társaság v Hungary may be read as a departure from Leander v. Sweden where the Court found that “Article
10 does not, in circumstances such as those of the present case, confer on the
individual a right of access to a register containing information on his
personal position, nor does it embody an obligation on the Government to impart
such information to the individual” (para 74). This potential
inconsistency in Article 10 jurisprudence has been pointed out by some commentators.
The
underlying difficulty of the protection of access to information under Article
10 is easy to see. Article 10 protects the right to “to receive and impart information.”
In contrast, Article 19 of the ICCPR and Article 13 of the American Convention
protect the right “to seek, receive and impart information”
(emphasis added). The drafting history of Article 10 reveals that the express
reference to the right “to seek” information was removed from the text of
Article 10 upon the request of the United Kingdom. The United Kingdom
intervened before the Grand Chamber to emphasize this point (paras. 99-103),
stressing that if the Grand Chamber were to recognize a right to access to
information, it would “far
exceed the legitimate interpretation of the Convention and would amount to
judicial legislation” (para. 103).
More importantly, UK courts had
serious reservations about the development of Article 10 case-law along the
lines of Társaság v. Hungary. In 2014, in Kennedy
v. Charity Commission,
the UK Supreme Court in several opinions expressed strong reservations about the
state of Strasbourg case-law on freedom of information under Article 10 and called
on the sections of the Court to relinquish jurisdiction in similar cases (per
Lord Mance):
"The Strasbourg
jurisprudence is neither clear nor easy to reconcile. … In
the present case, Strasbourg has spoken on a number of occasions to apparently
different effects. Further, a number of these occasions are Grand Chamber
decisions, which do contain apparently clear-cut statements of principle. …
[I]t may be unfortunate that the relevant sections did not prefer to release
the matter before them to a Grand Chamber. It is not helpful for national
courts seeking to take into account the jurisprudence of the European Court of
Human Rights to have different section decisions pointing in directions
inconsistent with Grand Chamber authority without clear explanation." (para.59)
Thus, is it safe to assume that in the
case of Magyar Helsinki Bizottság v.
Hungary, the Section of the European Court to which the case was fist assigned, relinquished jurisdiction to the Grand Chamber not so
much to the significance of the underlying case, but in response to the
suggestion of the UK Supreme Court.
The
Grand Chamber on the Interpretation of the Convention
The
Grand Chamber defined the issues very narrowly in the case, asking whether “Article 10 of the Convention can be interpreted as guaranteeing
the applicant NGO a right of access to information held by public authorities”
(para. 71), or slightly more generally, whether “whether
and to what extent [Article 10] embodies a right of access to State-held
information” (para. 117).
The
Grand Chamber acknowledged at the outset that Article 10 does not mention the
right to seek information, as many similar human rights instruments do. The
following general considerations guided the interpretation of Article 10 and
are worth quoting at length (internal references omitted):
"119. … in accordance
with the Vienna Convention, the Court is required to ascertain the ordinary
meaning to be given to the words in their context and in the light of the
object and purpose of the provision from which they are drawn.
120. … the context of the provision is a treaty for the
effective protection of individual human rights and that the Convention must also
be read as a whole, and interpreted in such a way as to promote internal
consistency and harmony between its various provisions.
…
123. Account must also be taken of any relevant rules and
principles of international law applicable in relations between the Contracting
Parties; the Convention cannot be interpreted in a vacuum and should so far as
possible be interpreted in harmony with other rules of international law of
which it forms part.
124. … The consensus emerging from specialised international
instruments and from the practice of Contracting States may constitute a
relevant consideration for the Court when it interprets the provisions of the
Convention in specific cases.
125. … It can be seen from the case-law that the travaux
préparatoires
are not delimiting
for the question whether a right may be considered to fall within the scope of
an Article of the Convention if the existence of such a right was supported by
the growing measure of common ground that had emerged in the given area."
The
Grand Chamber was particularly mindful of the concern that its own case-law is
inconsistent on access to information under Article 10:
"133. The fact that
the Court has not previously articulated in its case-law the relationship
between the Leander
principles and the more recent developments described above does not mean that
they are contradictory or inconsistent. The
dictum that “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” was, it appears, based on what may be
considered a literal reading of Article 10. It was repeated in the plenary
and Grand Chamber rulings in Guerra and Others,
Gaskin and Roche
(and also in Gillberg).
However, whilst holding that Article 10 did not, in circumstances such as those
at issue in Guerra and Others,
Gaskin and Roche,
confer on the individual a right of access to the information in question or
embody an obligation on the Government to impart such information, the Court did not, however, exclude the
existence of such a right for the individual or a corresponding obligation on
the Government in other types of circumstance. The above-mentioned recent
case-law (including Gillberg)
may be viewed as illustrating the types of circumstance in which the Court has
been prepared to recognise an individual right of access to State-held
information." (emphasis added)
After a careful
examination of international and foreign material, and with special attention
to the judgment of the IACtHR in Claude Reyes v. Chile
(para. 146) from 2006, the Grand Chamber was ready to conclude that “in response to the evolving
convergence as to the standards of human rights protection to be achieved”
(para. 154) it was time to clarify the scope of Article 10 for access to
information.
The Scope of Access to Information under Article 10:
The
scope of protection afforded to access to information under Article 10 is
carefully defined by the Court. First, the Court insists on a case-by-case
assessment of factors (such as the notion of public interest and the qualities
of the applicant) in order to permit a careful judicial monitoring of the scope
of the right. Although the uncompromising recognition of assess to information
under Article 10 is a major advance in European human rights jurisprudence, the
narrowness of the Court’s holding and the proximity of the relevant tests to
the facts of each case should be borne in mind when celebrating this advance.
These limitations follow from the fact that access to information is recognized
as a precondition to freedom of expression, and is not a self-standing right
under the Convention. The cautious approach of the Court is also explained by
the concurring opinion of Judges Nussberger and Keller (esp. para. 2) and the dissenting
opinion of Judge Spano who raised privacy concerns against the expansion of
Article 10. Second, the Court was careful about the burden that providing access to
information may impose on member states. As such the judgment of the Grand
Chamber is a meticulously consolidated reading of the existing case-law without
major surprises. This was also emphasized by the concurring opinion of Judges
Sicilianos and Raimondi (para. 27).
The
basic premise of the Court's position is that access to information is
instrumental for the “practical and effective” protection of freedom of
expression under Article 10: “the right of access to
information may under no circumstances fall within the ambit of Article 10 of
the Convention would lead to situations where the freedom to “receive and
impart” information is impaired in such a manner and to such a degree that it
would strike at the very substance of freedom of expression" (para. 155). The
Court delineated the scope of protection by tying it to a notion of public
interest in the public discourse of matters of public concern. In doing so the
Court emphasized that the need to disclose state-held information “may exist
where, inter alia,
disclosure provides transparency on the manner of conduct of public affairs and
on matters of interest for society as a whole and thereby allows participation
in public governance by the public at large.” (para. 161). The public interest test is worth recalling in full:
"162. The Court has emphasised that the definition of what
might constitute a subject of public interest will depend on the circumstances
of each case. 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, especially in that
they affect the well-being of citizens or the life of the community. This is
also the case with regard to 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. The public interest cannot be reduced to the public’s thirst for
information about the private life of others, or to an audience’s wish for
sensationalism or even voyeurism. In order to ascertain whether a publication
relates to a subject of general importance, it is necessary to assess the
publication as a whole, having regard to the context in which it appears.
163. In this connection, the privileged position accorded by
the Court in its case-law to political speech and debate on questions of public
interest is relevant. The rationale for allowing little scope under Article 10
§ 2 of the Convention for restrictions on such expressions."
As is apparent from the formulation of
the test, the Grand Chamber was mindful of the potential encroachment access to
state-held information in the name of the public interest may impose on private
life. This concern may well explain why the Court insisted on a
context-specific, case-by-case determination of what qualifies as information
in the public interest for the purposes of Article 10.
Note
that the public interest test is further qualified by the nature of the
applicant being a well-respected civil society organization. The Court used
this opportunity to further explain what it means by watchdog organizations in
the free speech context, emphasizing the instrumental nature of access to
information for a robust public discourse and govern accountability in a
constitutional democracy:
"167. The manner in
which public watchdogs carry out their activities may have a significant impact
on the proper functioning of a democratic society. It is in the interest of
democratic society to enable the press to exercise its vital role of “public
watchdog” in imparting information on matters of public concern, just as it is
to enable NGOs scrutinising the State to do the same thing. Given that accurate
information is a tool of their trade, it will often be necessary for persons
and organisations exercising watchdog functions to gain access to information
in order to perform their role of reporting on matters of public interest.
Obstacles created in order to hinder access to information may result in those
working in the media or related fields no longer being able to assume their
“watchdog” role effectively, and their ability to provide accurate and reliable
information may be adversely affected.
168. Thus, the Court
considers that an important consideration is whether the person seeking access
to the information in question does so with a view to informing the public in
the capacity of a public “watchdog”. This does not mean, however, that a right
of access to information ought to apply exclusively to NGOs and the press. It
reiterates that a high level of protection also extends to academic researchers and authors
of literature on matters of public concern. …. [t]he function of bloggers and popular users of the social
media may be also assimilated to that of “public watchdogs” in so far as
the protection afforded by Article 10 is concerned."
This understanding of the role of
watchdogs in the public discourse certainly applies under Article 10 outside
the immediate context of access to information.
As
for the burden imposed by access to information on member states under Article
10, the Court emphasized – in line with its previous case-law – that the
government does not have an obligation to collect data or to actively impart
information. The Court noted that “the fact that the
information requested is ready and available ought to constitute an important
criterion in the overall assessment” (para. 170).
In applying these general principles
to the case at hand, the Court found that the Hungarian authorities violated the
Convention when they failed to assess the “potential public-interest character
of the information sought” (para. 176). This inquiry into the “public-interest
character” of the information sought follows from Article 10, “irrespective of
whether public defenders could be qualified as “other persons performing public
duties” under the relevant national law” (para. 177). In the limitation
analysis. the Court demonstrated the application of this standard by pointing
out that “the request for these names, although they constituted personal data,
related predominantly to the conduct of professional activities in the context
of public proceedings. In this sense, public defenders’ professional activities
cannot be considered to be a private matter. Moreover, the information sought
did not relate to the public defenders’ actions or decisions in connection with
the carrying out of their tasks as legal representatives or consultations with
their clients” (para. 194). Regarding the privacy concerns of public defenders, the Court noted that their names could easily be learned from other sources
available to the public such as schedules of court hearings (para. 195).
Conclusion
The significance
of the judgment of the Grand Chamber in Magyar
Helsinki Bizottsag v. Hungary cannot be underestimated. It consolidates for
the first time the principles and premises of European human rights
jurisprudence on access to information under Article 10. The Court tied access
to information to freedom of expression and its role in providing for a robust
public discourse in matters of public interest in a democracy. The scope of
access to information is narrowly defined: it applies to state-held
information, it ensures access in the public interest and privileges recipients
who seek access to information in order to contribute to the public discourse
in a watchdog capacity. The audience’s potential “wish for sensationalism or even voyeurism” is not reason to provide access to information under the
Convention.
Second, the
Grand Chamber provided important insights into the principles of interpreting
the Convention where the text is silent. The starting point in making the
protection of the Convention rights “practical and effective” remains the
Vienna Convention together with the Court’s continuing concern to account for
the evolution of the protection of human rights under similar regional and
international instruments.
Third, the
judgment has great political significance in the ongoing judicial dialogue
between national courts and the European Court of Human Rights. While it may have been time for the Grand
Chamber to consolidate its jurisprudence under Article 10, the UK Supreme
Court’s call for action in this respect might well have served as a source of inspiration
to take up a relevant case from another member state at the right time. The
willingness of the Court to keep a watchful eye on developments in national
courts should encourage human rights defenders not only to coordinate across
borders in strategic cases but also to continue to draw attention to their
victories and failures (!) in the European public discourse on human rights.
Hopefully, next time Europeans will not have to wait ten years before the
European minimum standard unquestionably reaches the level of protection
afforded in the UN system and the Inter-American regime.
