EHRM: Verbod grootschalige publicatie belastinggegevens is geen schending van vrijheid van meningsuiting

EHRM 27 juni 2017, IEF 16939; IEFbe 2243; IT 2316; Application no. 931/13 (Satakunnan Markkinapörssi Oy en Satamedia Oy tegen Finland). Zie eerder [IEF 7414]. De bedrijven Satakunnan Markkinapörssi Oy en Satamedia Oy hadden de persoonlijke belastinggegevens van 1,2 miljoen mensen gepubliceerd. De binnenlandse autoriteiten oordeelden dat dergelijke groothandel onwettig was. De bedrijven deden zonder succes een beroep op schending van hun vrijheid van meningsuiting. Het EHRM stelt dat er geen sprake is van schending van de vrijheid van meningsuiting, artikel 10 EVRM.

After two companies had published the personal tax information of 1.2 million people, the domestic authorities ruled that such wholesale publication of personal data had been unlawful under data protection laws, and barred such mass publications in future. The companies complained to the European Court of Human Rights that the ban had violated their right to freedom of expression. In today’s Grand Chamber judgment in the case of Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland the Court held, by a majority of 15 to 2, that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The Court held that the ban had interfered with the companies’ freedom of expression. However, it had not violated Article 10 because it had been in accordance with the law, it had pursued the legitimate aim of protecting individuals’ privacy, and it had struck a fair balance between the right to privacy and the right to freedom of expression. In particular, the Court agreed with the conclusion of the domestic courts, that the mass collection and wholesale dissemination of taxation data had not contributed to a debate of public interest, and had not been for a solely journalistic purpose. However, also by a majority of 15 to 2, the Court did find a violation of Article 6 § 1 (right to a fair hearing within a reasonable time), due to the excessive length of the proceedings (which had lasted over eight years).

31. Consecrated in Article 10, of course, is the right to “impart information and ideas without interference by public authority”. Today’s judgment subjects that right to a limitation by the respondent State that is unforeseeable and disproportionate to any legitimate aim.

32. Granting domestic authorities broad discretion to define “journalistic activity” for the purposes of Article 10 can lead to systematic efforts to curtail political speech. Note that the courts of Finland were duty bound to interpret the term journalism broadly (see Case C‑3/07 Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy, judgment of 16 December 2008, Grand Chamber of CJEU). In the present case, the applicants, who were media professionals, were denied journalistic protection by this Court, which applied a wide margin of appreciation in handling the position of the domestic court on the basis of several criteria that must be considered arbitrary: the amount of information published, the format used for its publication, and the alleged lack of a “public interest” involved in the dissemination of taxpayer data.[19] To accept these as valid criteria for restricting journalistic expression would mean that authorities would, in the name of the “general interest”, be able to censor publications that they deemed not to promote discussion of a topic of public interest. Under the terms of Articles 8 to 11 of the Convention, there are several legitimate aims liable to justify interference in an individual’s manifestation of his or her freedom of expression. This enumeration of legitimate aims is strictly exhaustive and necessarily restrictive (see Leyla Şahin v. Turkey [GC], no. 44774/98, § 154, ECHR 2005‑XI). The aforementioned “general interest” is not included among these aims. Moreover, under the pretext of using a lenient balancing test, the Court omitted to conduct a proper review of the existence or absence of a public interest in the publication, which was deemed as voyeuristic without explanation.

33. 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.

Media Report (Dirk Voorhof).