THE NEW (AND EMERGING?) PRIVACY RIGHTS: PART II

On 13 May 2014, the Court of Justice of the European Union (CJEU) made a ruling in the case Google Spain SL, Google Inc. v Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez (Case C-131/12) that drastically changed the privacy landscape for European citizens. The outcome of the ruling has come to be known as ‘the Right to be Forgotten’.

Not long after that judgment came the decision of the Grand Chamber of the European Court of Human Rights in Magyar Helsinki Bizottság v Hungary (App No 18030/11). The court was asked to consider whether Article 10 of the Convention could be interpreted as guaranteeing a right of access to information held by public authorities. It declared that when certain criteria are met it could. And so, access to information is now, in essence, a human right.

Finally, there is the question of privacy rights in relation to the dead, where the possibility has emerged that such a claim could be established. The ECtHR has considered the question in the cases: Putistin v Ukraine (App No 16882/03), Yukovlevich Dzugashvili v Russia (App No 41123/10) and Genner v Austria (App No 55495/08). The near ubiquitous use of social media has also introduced a new dimension to personal information. An issue that now arises is what happens to, and who owns, information on social media accounts when someone dies?

I shall be considering these ‘Rights’ in turn in separate articles divided into: Parts I, II and III.

[PART I: THE RIGHT TO BE FORGOTTEN]

PART II: ACCESS TO STATE-HELD INFORMATION

In Magyar, the applicant was a Hungarian non-governmental organisation (‘NGO’) that was assessing the government’s system of selecting defence counsel. Two police stations refused to provide the NGO’s requested information, because they considered the names of defence counsel to be private information. The NGO challenged the decision in the domestic courts, on the basis that there had been a breach of its right to the freedom to receive and impart information under Article 10 of the European Convention on Human Rights (‘Article 10’).

Magyar lost its case in the Hungarian Supreme Court and took the matter to the European Court of Human Rights (‘ECtHR’). The key question that the Grand Chamber was asked to resolve was whether, and to what extent, does Article 10 embody a right of access to information held by the State?

It concluded that while Article 10 clearly encompasses a negative right (for the State not to obstruct an individual from receiving or imparting information), it also includes a positive right to be given access to information by the State, which emerges only under certain conditions. This does not however impose positive obligations on a State to collect or disseminate information of its own motion.

There are two situations where the positive right emerges. First, where there is a judicial order imposing disclosure of the information. Second, where access to the information is instrumental for the applicant’s right to freedom of expression. In the latter scenario, there are four threshold criteria to be met for the denial of the information to constitute an interference with Article 10:

  • The purpose of the information requested must be necessary for the applicant “to exercise the freedom to receive and impart information and ideas to others”[1];
  • The information must be for the purpose of contributing to public debate, or providing information on matters of interest for society as a whole[2] ;
  • The role of the applicant must be such that it is a ‘social watchdog’, for example the press, NGOs, academic researchers and the like[3]; and,
  • The information, in principle, must be ready and available to the public authorities.[4]

The collection of the information from police departments was fundamental for Magyar to properly survey the government’s public defenders scheme, and to contribute to a topic of obvious public interest. Criteria (3) and (4) were also met. The court reasoned that the use of the names of the public defenders was in the context of their professional activities, and could not be considered private within the meaning of Article 8. The Grand Chamber concluded that withholding the names was not “necessary in a democratic society” and Article 10 had been breached.

The decision is perhaps unsurprising. International instruments governing freedom of expression have a broader formulation than Article 10 of the Convention. Article 19 of the Universal Declaration on Human Rights, and Article 19 of the International Covenant on Civil and Political Rights, give the right “to seek, receive and impart information”.[5] More than 90 countries in the world have some sort of legislation enabling individuals to apply to access information held by governments and their bodies.

In the UK, the Freedom of Information Act 2000 (‘FOIA’) was introduced to create a statutory right of access to official records and information. Its coming into being was not without obstacle. It took decades for a bill to get to the committee stage. Even then, it was criticised by two parliamentary committees for its lack of presumption in favour of disclosure of information, for the existence of a ministerial veto, and for the high number of class-based exemptions.

It was one of these exemptions – section 32(2) to be precise – that came under scrutiny by the Supreme Court in Kennedy v Charity Commission [2014] UKSC 20. The same question arose. By a majority[6], the Supreme Court decided that the jurisprudence does not support the contention that Article 10 includes a right to have access to information from the State.

The Grand Chamber in Magyar was of the view that all that was needed was “a clarification of the Leander principles[7] and that their decision was not incompatible with previous decisions, but an extension of the development of the law in this area. The outcome of this case is a milestone in information law. It recognises that the freedom of expression and freedom of information are at times, two sides of the same coin.

For the UK, the decision creates an additional legal avenue to access information held by public authorities, in particular, to information from those bodies excluded by the FOIA. It also provides a legal basis to challenge the absolute exemptions contained in the FOIA, which are not subject to the public interest test, and the UK government’s veto of decisions. Those flaws identified in the FOIA’s genesis, are now likely to come to the fore in legal challenges.

The next part of this series ‘Privacy Rights of the Deceased’ will be available next month.

If you are interested in further information or advice, please contact my clerks to instruct me on: 01823 247 247.

 

[1] Paragraph 158 of the judgment.

[2] Paragraphs 161-162 of the judgment.

[3] Paragraphs 164-168 of the judgment.

[4] Paragraphs 169-170 of the judgment.

[5] My emphasis added.

[6] Lord Wilson and Lord Carnwath dissented.

[7] Paragraph 154 of the judgment.

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