Out-Law News 3 min. read

Denying access to information can breach freedom of expression rights, rules human rights court

Public bodies that deny requests for information can in some cases be held in breach of individuals' freedom of expression rights, the European Court of Human Rights has ruled.

In its recent judgment the ECHR said that freedom of expression rights under Article 10 of the European Convention on Human Rights can be applied where there is interference with rights of access to information.

The Court's finding goes against legal arguments advanced by the UK government in the case. It had claimed that "reading the right to freedom of information into Article 10 would amount to constructing a 'European freedom of information law' in the absence of the normal consensus".

The ECHR said: "To hold that 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… 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 that right."

"Article 10 does not confer on the individual a right of access to information held by a public authority nor oblige the government to impart such information to the individual. However … such a right or obligation may arise, firstly, where disclosure of the information has been imposed by a judicial order which has gained legal force … and, secondly, in circumstances where access to the 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' and where its denial constitutes an interference with that right," it said.

The Court said that whether and to what extent the denial of access to information constitutes an interference with freedom-of-expression rights must be assessed on a case-by-case basis and "in the light of its particular circumstances".

The purpose of the request for information, the nature of the information sought and the "particular role of the seeker of the information in 'receiving and imparting' it to the public", as well as how "ready and available" the information requested is, are factors to be considered when making that assessment, it said.

The information sought must be "necessary for the exercise of freedom of expression", and "the information, data or documents to which access is sought must generally meet a public‑interest test in order to prompt a need for disclosure under the Convention", the ECHR said. A public interest need for disclosure "may exist where … 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", it said.

Weight favouring access to information under the public interest test should be given where the requester serves as a "public watchdog", such as a member of the press, or "non-governmental organisation whose activities related to matters of public interest", as well as academic researchers and "authors of literature on matters of public concern", the Court said.

It also said that if information requested is "ready and available" then this is "an important criterion in the overall assessment of whether a refusal to provide the information can be regarded as an 'interference' with the freedom to 'receive and impart information'".

The ECHR was ruling in a case that originated in Hungary, where a non-governmental organisation (NGO) has been seeking access to information held by police departments in the country relevant to the appointment of legal aid defence counsel.

The refusal to disclose information, which included personal data, represented a breach of the NGO's Article 10 freedom of expression rights, the NGO had claimed. The ECHR agreed.

The ECHR said: "The information sought by the applicant NGO from the relevant police departments 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 non-governmental human-rights organisation, 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," the Court ruled.

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