The ECHR found violations of the requirements of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms with regard to the length of proceedings in the courts of the country.

Заголовок: The ECHR found violations of the requirements of Article 15 of the Convention for the Protection of Human Ri Сведения: 2018-07-19 07:56:13

ECHR judgment of June 27, 2017 on the case of Satakunnan Markkinpersy Oy Company and Satamedun Oy (Satakunnan Markkinaporssi Oy and Satamedia Oy) v. Finland (application No. 931/13).

In 2013, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Finland.

In the case, the applicant's complaint on the decision limiting the mass publication of tax information was successfully considered. The case did not violate the requirements of Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case involved violation of the requirements of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms with regard to the length of proceedings in the courts of the country.

 

CIRCUMSTANCES OF THE CASE


The first applicant company, Satakunnan Markkinpersi Oi, published a journal containing information on the taxable income and assets of Finnish taxpayers. This information was public due to the law (by virtue of Article 5 of the Law on Public Disclosure and Confidentiality of Tax Information). The second company, the applicant, "Satamedia Oi," offered a service to provide information in the field of taxation through text messages. In April 2003, the Data Protection Ombudsman suggested that the Data Protection Board prohibit applicant companies from processing tax data in such a way and to the extent that they used in 2002 and the transfer of these data to the SMS service. The Data Protection Board rejected the Ombudsman's application on the grounds that the applicant companies carried out journalistic activities and therefore had the right to deviate from the provisions of the Personal Data Law. The case was later referred to the Supreme Administrative Court, which in February 2007 requested a preliminary determination from the Court of Justice of the European Union (hereinafter referred to as CJEU) concerning the interpretation of Directive 95/46 / EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals processing of personal data and the free circulation of such data. In its judgment of 16 December 2008 (Tietosuojavaltuutettu v. Satakunnan {Markkinaporssi} Oy and Satamedia Oy, C73 / 07, judgment of 16 December 2008). The CJEU concluded that activities relating to data from documents that are publicly available under domestic law may be recognized as "journalistic activity" if its purpose is to communicate information, opinions or ideas to the public regardless of the method used to disseminate them. In September 2009, the Supreme Administrative Court ordered the Data Protection Board to prohibit the processing of tax data in this way and to the extent that the applicant companies used in 2002. Noting that the CJEU acknowledged that the decisive factor was the assessment of whether the publication was part of a public discussion or was aimed solely at satisfying the reader's curiosity, the Supreme Administrative Court concluded that the publication in full of the database collected for journalistic purposes and the transmission of SMS information -service could not be considered as journalistic activity.

In the framework of the Convention proceedings, the applicant companies complained in particular of a violation of Article 10 of the Convention. In the judgment of 21 July 2015, the Chamber of the European Court decided, by six votes in favor, one against, that the requirements of Article 10 of the Convention had not been violated. On December 14, 2015, the case was referred for review to the Grand Chamber at the request of the applicants.


ISSUES OF LAW


(a) A preliminary question whether the taxpayers had a competing privacy right in accordance with Article 8 of the Convention. The fact that the information was already publicly available did not undo the need to protect Article 8 of the Convention. If there was a collection of data about a particular person, processing or using personal data or publishing the relevant material in a way or to an extent that is beyond what is usually predictable, considerations arise regarding privacy. In the present case, the data collected, processed and published by the applicant companies in the newspaper disclosed details of taxable earned and unearned income and taxable net assets, and therefore clearly affected the privacy of the persons concerned, despite the fact that, under Finnish law, the data could be publicly available.

(b) Whether there was interference, whether the interference was prescribed by law, and whether it pursued a legitimate aim. The Board's decision to protect data on the prohibition of the processing of tax data in a disputable manner, left unchanged by the domestic courts, entailed interference with the right of the applicant companies to disseminate information guaranteed by Article 10 of the Convention. The interference was provided for by law, the wording of the relevant legislation, the nature and scope of the journalistic derogation from the provisions of the legislation relied on by the applicant companies were applied in a fairly predictable manner following the interpretation given to the CJEU Supreme Administrative Court and, as media professionals, were aware that the massive data collection and mass distribution could not be considered as data processing "exclusively" for the and the interference pursued the legitimate aim of protecting the reputation or rights of others.

(c) The need for a democratic society. The Court considered the criteria that it formulated in its previous case-law as relevant in balancing competing rights to respect for private life in accordance with article 8 of the Convention and freedom of expression under article 10 of the Convention.

(i) Contribution to the discussion on an issue of common interest. The rationale for Finland's legislative policy, which provides for the general availability of tax data, was the need to provide the public with the opportunity to monitor the activities of public authorities. Nevertheless, universal access to tax data in accordance with clear rules and procedures and the overall transparency of the Finnish tax system did not mean that the controversial publication itself facilitated discussion on a matter of general interest. In examining the publication as a whole and in the context, the Court, like the Supreme Administrative Court, is not convinced that the publication of tax data by the applicant companies in this way and in such volume (the original data was published as mass catalogs almost verbatim) or even that its main purpose was this.

(ii) Subject of publication. About 1,200,000 individuals were affected by the publication. All of them were taxpayers, but very few were owners of high net income, public figures or well-known personalities in the meaning of the Court's case-law. Most of the individuals whose data were listed in the newspaper belonged to low-income groups.

(iii) Method of obtaining information and its reliability. The reliability of the published information was never disputed, and the data were not obtained illegally. However, it was clear that the applicant companies that withdrew their request for data from the National Taxation Board and instead hired people to collect tax data manually by local tax authorities followed a policy of bypassing conventional channels and, accordingly, checks and balances imposed by the Finnish authorities to regulate access and dissemination.

(iv) The content, form and consequences of the publication. Despite the fact that journalists enjoy freedom of choice as to which news sources are among those falling in the scope of their attention and how to work for them, this freedom is accompanied by duties. Even though the tax data in the applicant companies case were publicly available in Finland, they could only be obtained from local tax offices, and their receipt was subject to clear conditions. Journalists could receive tax data in digital format, but only a certain amount of data could be selected. Journalists are required to indicate that the information is requested for journalistic purposes and that it will not be published as a list. Thus, although information concerning citizens was publicly available, specific rules and guarantees regulated access to it. From the point of view of the Court, the fact that the relevant data were available to the public in accordance with domestic law did not necessarily mean that they could be published without any restrictions. The publication of data in the newspaper and the further dissemination of these data via SMS service meant the manner and degree of their availability that were not planned by the legislator. Guarantees in the legislation of Finland were provided precisely because of the general availability of personal tax data, the nature and purpose of legislation on data protection and accompanying deviation from it for journalists. In such circumstances, the authorities of the respondent State enjoyed broad discretion in deciding how to achieve an equitable balance between the relevant rights provided for in articles 8 and 10 of the Convention. When comparing these rights, the courts of Finland sought to strike a balance between freedom of expression and the right to privacy as embodied in the data protection legislation. Applying a derogation from the requirements of the law provided for in § 2 (5) of the Personal Data Act and a test of general interest in the disputed interference, the courts, in particular the Supreme Administrative Court, analyzed the relevant Convention case-law and CJEU case-law and carefully applied the case-law of the European Court to the facts of the present case.

(v) Sanction. The applicant companies were not prevented from publishing tax data or continuing the publication of the newspaper, provided that they would do so in a manner consistent with the Finnish and European rules on data protection and access to information. The fact that in practice the restrictions imposed on the amount of information to be published could make part of their commercial activities less profitable, was not, as such, a sanction in the meaning of the Court's case-law.

As a result, the competent authorities of the respondent State and, in particular, the Supreme Administrative Court attached due importance to the principles and criteria laid down in the Court's case-law for balancing the right to respect for private life and the right to freedom of expression. The Supreme Administrative Court gave due importance to its conclusion that the publication of tax data in the manner described and on the scale described did not facilitate discussions on a matter of general interest and that the applicants could not substantiate the claim that this was done solely for journalistic purposes in the sense of domestic and European legislation. Consequently, the motives on which the Finnish courts based their findings were relevant and sufficient to demonstrate that the interference complained of was "necessary in a democratic society" and that the authorities of the respondent State acted within their discretion in establishing a fair balance between competing interests, considered in the case.


DECISION


In the case, the requirements of Article 10 of the Convention were not violated (adopted by 15 votes "for" with two - "against").

Also, the Grand Chamber of the European Court decided by 15 votes in favor, against two, that there had been a violation of the requirements of Article 6 § 1 of the Convention as regards the length of proceedings before the domestic courts.

 

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