On 8 November 2016, the Grand Chamber of the European Court of Human Rights handed down a much-anticipated judgment on the right of access to information. While the Court was clearer and firmer than it had ever been before on the status of the right to access information as part of the right to freedom of expression guaranteed by Article 10 of the European Convention, it stopped short of acknowledging access to information as a fully-fledged right under the provision.
The case of Magyar Helsinki Bizottság v. Hungary concerned an information request that had been made by the Hungarian Helsinki Committee (HHC), a Budapest-based NGO that monitors and conducts advocacy on human rights. The request was addressed to a number of police stations in the country, asking that they provide the names of public defenders appointed in their area and the number of cases that had been assigned to each of them. This information was requested under Hungary’s 1992 Data Act, which contained a provision on access to information. The information was requested in the context of the HHC’s investigation into the quality of defence work done by public defenders. Two police stations refused to provide the information, and these refusals were challenged by HHC before the Hungarian courts. The Supreme Court found that, while the implementation of the constitutional right to criminal defence was a State task, the subsequent activities of the public defenders was a private activity, resulting in their names not being subject to disclosure under the Data Act. The matter was then taken to the European Court, which relinquished the matter to the Grand Chamber.
The Grand Chamber’s decision was much-anticipated as the Court had been slowly moving from an apparent outright rejection of the right to access information under Article 10 ECHR (Leander v. Sweden) to gradually acknowledging that, under certain circumstances, a limited right to access information falls within the right to freedom of expression as protected by that provision (Társaság a Szabadságjogokért v. Hungary). However, in the wake of this trajectory, the Court had left behind a legal quagmire that the Grand Chamber still had to navigate carefully in its judgment. It was hoped that the Grand Chamber would finally follow the line already taken by the Inter-American Court and the UN Human Rights Committee, and acknowledge that Article 10 comprised a self-standing right to access information. However, as much as the Grand Chamber took a significant step forward in its access to information jurisprudence, it was constrained by what had gone before.
What had gone before: a legal quagmire
There were a number of factors derived from the Court’s own case law, and the Convention itself, that had together reinforced the position that Article 10 ECHR did not provide for a standalone right of access to information held by public authorities.
- The wording of Article 10 itself: unlike its counterparts under the International Covenant on Civil and Political Rights (Article 19) and the Universal Declaration on Human Rights (Article 19), Article 10 ECHR was not drafted to include an explicit reference to the freedom to “seek” information. As the right to access information was not explicitly apparent from the wording of Article 10, it was left for the Court to consider whether and to what extent such a right could be viewed as falling within the provision.
- The Leander Principle: in Leander v. Sweden, the Court had held that “the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that “others wish or may be willing to impart to him.” The Grand Chamber recognized that the Court’s jurisprudence had extended this principle to cases where one arm of the State had recognized a right to receive information (e.g. by a court judgment) but another arm of the State had frustrated or failed to give effect to that right (see Sdruženi Jihočeské Matky v. the Czech Republic). Article 10 could, therefore, only be relied on in cases where the State prevented an individual from accessing information that another person was willing or required to disclose. It could not be relied on more generally to establish a right of access to state-held information.
- No positive obligation on States: the Court had found that Article 10 did not confer on a State positive obligations to collect and disseminate information of its own motion (Guerra and Others v. Italy).
These factors effectively created obstacles for the Grand Chamber when considering the status of the right to access information under Article 10 ECHR, and hindered its ability to keep up with the international community on the issue.