The Grand Chamber of the European Court of Human Rights (ECtHR) held on November 8 that Hungary violated the right to receive and impart information as guaranteed under the European Convention on Human Rights (ECHR) by refusing to provide requested information to an international human rights non-governmental organization (NGO). See ECtHR, Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, ECHR 2016, Judgment of 8 November 2016, paras. 180, 200. The applicant NGO, Magyar Helsinki Bizottság, sought from Hungarian police departments the names and caseload information of public defenders in 2008 for purposes of examining the police departments’ appointments of counsel. See id. at para. 16. Two police departments refused to comply, claiming that withholding the information was necessary to protect the subjects’ right to privacy. See id. at paras. 19–20. Clarifying its past jurisprudence on the right of access to information, the Court held that where an individual or NGO seeks information that is a matter of public interest from the government to share with society, the NGO has a right to receive the information and the State an obligation to impart it. See id. at paras. 156-59. Accordingly, the Court concluded that Hungary had unjustifiably interfered with the applicant’s rights under Article 10 of the ECHR (right to freedom of expression). See id. at para. 200.
The applicant NGO, which is based in Budapest, monitors the implementation of international human rights instruments, focusing on access to justice and proper enforcement of the right to defense. See id. at para. 10. As part of an ongoing series of projects designed to analyze and remedy the flaws in Hungary’s public defense system, the applicant NGO requested from 28 police departments, pursuant to the domestic Data Act, the names of public defenders who served in 2008 and the number of cases assigned to each. See id. at para. 16.
Two police departments refused to comply with the request, alleging that the information requested was not subject to public disclosure because public defenders are not “members of a body performing State, municipal or public duties,” but rather, perform private activities pursuant to a constitutional right. See Magyar Helsinki Bizottság v. Hungary [GC], 8 November 2016, at paras. 19–20. [ECtHR Press Release] Additionally, the departments cited the undue administrative burden they faced by complying. See Magyar Helsinki Bizottság v. Hungary [GC], 8 November 2016, at para. 19.
The applicant, citing Article 10 of the ECHR, brought this case to the attention of the Court in March 2011. See id. at para. 1. In May 2015, the Chamber to which the case had been assigned renounced its jurisdiction, opting to cede the case to the Grand Chamber. See id. at para. 4.
ECtHR’s Existing Legal Standards
The Court began with an assessment of Article 10, asserting that it “can be interpreted as guaranteeing the applicant NGO a right of access to information held by public authorities” in accordance with the Court’s jurisprudence. See id. at para. 71. The Court previously has held that the right to receive information extends to “legitimate gathering of information on a matter of public importance” by a “social ‘watchdog’ . . . organization” and the State should not interfere with the receipt of information. See id. at para. 132. See, e.g., ECtHR, Társaság a Szabadságjogokért v. Hungary, no. 37374/05, ECHR 2009, Judgment of 14 April 2009.
The Court has also held that the right to impart and receive information includes the right to receive information from others who wish to impart it or are ordered to do so by a court and protects against government interference with the receipt of such information. The latter line of jurisprudence has established that the State does not have a positive obligation to impart information held by public authorities in all instances. The Court, however, only held that the State did not have an obligation to impart information to an individual requesting personal information pertaining to their private life. See Magyar Helsinki Bizottság v. Hungary [GC], 8 November 2016, paras. 127-31, 156. See, e.g., ECtHR, Guerra and Others v. Italy, no. 14967/89 , Rep. 1998-I, Judgment of 19 February 1998.
ECtHR’s Explanation of the Law
In this case, the Court took the opportunity to reconcile its past jurisprudence and the circumstances under which an individual has a right to receive information held by State authorities under Article 10 of the Convention. See Magyar Helsinki Bizottság v. Hungary [GC], 8 November 2016, para. 156. The Court continues to hold that an individual does not necessarily have a right of access to information held by a State authority and the State does not necessarily have an obligation to impart information to the individual. The Court, though, has now held that if a national court order demands the State to impart information or if the withholding of information from the individual would interfere with the right to freedom of expression, a right to the information and an obligation to impart the information arises under Article 10. See id.
In determining whether a State’s denial of access to information is an interference with an individual’s right to freedom of expression, the Court stated that the situation “must be assessed…in the light of its particular circumstances,” taking into consideration four factors: (1) the purpose of the request, (2) the nature of the information sought, (3) the applicant’s role, and (4) whether the information is readily available. See id. at paras. 158-70. On the first point – the purpose of the request – imparting the information to the individual seeking it must be necessary to exercise the right to impart information to others in the public. The information itself must be necessary to exercise the right to freedom of expression. See id. at paras. 157-59.
The second factor – on the nature of the information sought – the Court found that the information must be within the public interest, which “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.” Examples, the Court stated, include a matter of “considerable controversy,” “important social issues,” and other matters of public interest. A matter of public interest, the Court clarified, does not arise from “the public’s thirst for information about the private life of others” or for “sensationalism or even voyeurism.” See id. at para. 162.
With regard to the third factor – the role of the individual or applicant before the Court – the Court recognizes the importance of journalists, a “social watchdog,” and NGOs that engage in matters of public interest because they foster informed public debate necessary in a democratic society. See id. at paras. 164-67. The Court, therefore, concluded that is important to consider if the individual who seeks information does so to inform the public. These individuals may include, the Court stated, not only journalists and NGOs but also academics, authors, and bloggers. See id. at para. 168.
On the fourth and final factor – whether the information is readily available – the Court held that if the data is already “ready and available,” it may not be burdensome for the State to gather and impart the information. See id. at paras. 169-70.
An interference with the right to freedom of expression, though, may still be justified if it is prescribed by law, in pursuit of a legitimate aim as defined in Article 10(2) of the ECHR, and necessary in a democratic society. See id. at para. 181.
ECtHR’s Analysis on the Facts
In this case, the Court held that consideration of the four factors indicated that the refusal to impart the requested information interfered with the exercise of freedom of expression in violation of Article 10 of the ECHR. See id. at para. 180. The applicant’s request, the Court found, for data was made for a suitable purpose, namely to share information concerning a matter of public importance, and that the nature of the information sought was necessary to foster an informed public debate and to exercise the right to freedom of expression. See id. at paras. 172, 175. As a well-established NGO dedicated to informing others about human rights and the law, the Court found the applicant most likely did intend to impart the information to the public. See id. at para. 178. Finally, the Court deemed the information readily available for production. See Magyar Helsinki Bizottság v. Hungary [GC], 8 November 2016, at para. 179.
The Court held that the interference with the right to freedom of expression was not justified. See id. at para. 200. The Court agreed with the government’s assertion that the denial of access to the information was prescribed by law under the Data Act. See id. at para. 185. Nevertheless, although the interference was “prescribed by law” and supported the “legitimate aim of protecting the rights of others,” the Court held that the restriction was not “necessary in a democratic society.” See id. at paras. 185–86, 200. First, the Court found that the public defenders’ rights under Article 8 of the ECHR (the right to privacy) were not threatened as the information released was limited to their names and case assignments. Accordingly, the Court found that restriction – which would prevent an analysis of whether the legal aid system was biased – was not proportional to the legitimate aim of protecting the public defenders’ right to privacy. See id. at paras. 191-200.
In its analysis of the legal standards, the Court emphasized the widespread recognition of the right of access to information, recounting the right’s acceptance at the international level as “an essential element of the right to freedom of expression.” See id. at paras. 140, 142. In particular, the Court noted that the right is guaranteed by Article 19 of the International Covenant on Civil and Political Rights, and the Human Rights Committee – the treaty body that monitors States’ adherence to the ICCPR – has upheld the right of access to information. See id. at paras. 140-41. The Human Rights Committee has also found that the right of access to information includes access to State held information, particularly when taking into consideration the nature of the information and of the function of the entity that seeks the information. See id.
For a summary of the European Court’s jurisprudence on the right to counsel or the right to privacy, see its factsheets on police arrest and assistance of a lawyer and the right to the protection of one’s image.