The European Court of Human Rights (Grand Chamber) has given
judgment in a case concerning the balance between privacy and freedom of
expression, in this case an extreme example of freedom of expression as the facts
concerned the publication of personal tax data.
Satakunnan
Markkinapörssi Oy and Satamedia Oy v Finland (application no. 931/13) concerns
two companies which had published the personal tax information of 1.2 million
people. The domestic Finnish 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. The
Court has now 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: 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.
Principal facts
The applicant companies, Satakunnan Markkinapörssi Oy and
Satamedia Oy, are Finnish limited liability companies based in Kokemäki
(Finland). Both companies published the newspaper Veropörssi, which reported on
taxation information. In 2003 the second applicant company, together with a
telephone operator, started an SMS-service permitting people to obtain taxation
information from a database. The database had been created using information
already published in 2002 in Veropörssi on 1.2 million persons’ income and
assets (amounting to a third of all taxable persons in Finland).
In April 2003 the Data Protection Ombudsman brought administrative
proceedings concerning the manner and extent of the applicants’ processing of
taxation data. The Data Protection Board dismissed the Ombudsman’s case on the
grounds that the applicant companies were engaged in journalism and so were
entitled to a derogation from the provisions of the Personal Data Act. However,
the case subsequently came before the Supreme Administrative Court, which found
that the publication of the whole database could not be considered as
journalistic activity but as the processing of personal data, which the
applicant companies had no right to do. The court quashed the earlier decisions
and referred the case back to the Data Protection Board. In November 2009 the Board
forbade the applicant companies from processing taxation information to the
extent that they had done in 2002 and from passing such data to the
SMS-service. This decision was ultimately upheld by the Supreme Administrative
Court in June 2012.
Judgment of the Court
Article 10 (freedom of expression)
The Court held that there had been an interference with the
applicant companies’ right to impart information under Article 10, arising from
the prohibition on them processing and publishing taxation data. However, the
Court held that there had been no violation of Article 10, because the
interference had been ‘in accordance with the law’, it had pursued a legitimate
aim, and it had been ‘necessary in a democratic society’.
In regard to the question of whether the interference had
been ‘in accordance with the law’, the Court held that it had had a legal basis
in sections 2(5), 32 and 44(1) of the Personal Data Act. It had been
sufficiently foreseeable for the applicant companies that their activities
would be considered unlawful under that legislation, and that such a mass
collection and wholesale dissemination of data would not be covered by the
law’s derogation for journalistic purposes.
In regard to the question of whether the interference had
pursued a legitimate aim, the Court held that the interference had clearly been
made in order to protect ‘the reputation or rights of others’, a legitimate aim
under Article 10 § 2. The protection of privacy had been at the heart of the
data protection legislation, and the Data Protection Ombudsman’s actions against
the companies had been based on concrete complaints from individuals claiming
that their privacy had been infringed.
The core question before the Court was whether the
interference had been ‘necessary in a democratic society’. When addressing this
issue, the Court was required to assess whether the domestic authorities had
appropriately balanced the right to respect for private life and the right to
freedom of expression. The Court concluded that a fair balance had been struck,
and that the domestic authorities had given due consideration to the relevant
principles and criteria set down in the Court’s case law. In particular, the
Court agreed with the conclusion of the Supreme Administrative Court that the
publication of the taxation data in the manner and to the extent described did
not contribute to a debate of public interest, and that the applicants could
not in substance claim that the publication had been carried out for a solely
journalistic purpose within the meaning of the relevant law.
Furthermore, the Court noted that the applicants’
collection, processing and dissemination of data had been conducted on a bulk
basis, in a way that impacted on the entire adult population. Compiling the
data had involved circumventing the normal channels used by journalists to
obtain such information, as well as the checks and balances established by the
authorities to regulate access to it. The applicants’ dissemination of the data
had made it accessible in a manner and to an extent which had not been intended
by the legislator.
Though Finnish law had made personal taxation information
publicly accessible, data protection legislation had also established
significant limits to this accessibility. The parliamentary review of such
legislation in Finland had been both exacting and pertinent, a process
reflected at the EU level. In such circumstances, the Finnish authorities had
enjoyed a wide margin of appreciation in deciding how to strike a fair balance
between the competing rights of privacy and expression relating to the use of
the data. The Court also took into consideration the fact that most countries
in Europe do not grant public access to personal tax information and the
Finnish legislation is somewhat exceptional in this regard. Furthermore, the
decisions of the authorities had not put a total ban on the applicant
companies’ publication of taxation data, but had merely required them to make
such publications in a manner consistent with Finnish and EU data protection
laws.
In light of these considerations, the Court found that the
Finnish authorities had acted within their margin of appreciation, and that the
reasons relied upon for their interference with the applicants’ freedom of
expression had been both relevant and sufficient to show that it had been ‘necessary
in a democratic society’. There had therefore been no violation of Article 10.
Article 6 § 1 (right to a fair hearing within a reasonable
time)
Noting that the domestic proceedings had lasted between
February 2004 and June 2012, the Court held that – even taking into account the
legal complexity of the case – the length of proceedings had been excessive and
had failed to meet the reasonable time requirement, in violation of Article 6 §
1.
Just satisfaction (Article 41)
The Court found no evidence of any pecuniary or
non-pecuniary damage resulting from the violation, but held that Finland was to
pay the applicant companies 9,500 euros in respect of costs and expenses.
