A leading European court has overwhelmingly ruled the ability to access information from public bodies is a human right – which, the UK government tried to argue against.
In a recent ruling by the Grand Chamber of the European Court of Human Rights, 15 judges (two voted against) ruled that Article 10(1) of the Convention on Human rights “could be interpreted as including a right of access to information”.
The case (for nerds: Magyar Helsinki Bizottság v. Hungary) saw a Hungarian NGO be told it could not have information from the police. The court ruled that as the NGO was trying to scrutinise an issue of public interest the refusal to provide the information could be against the right to “receive” information as part of Article 10 of the European Convention of Human Rights.
Information requested by the NGO was related to the efficiency of the country’s legal system. In particular, it was seeking information around the principles of fair hearings and whether lawyers continually appointed could cause problems. The court found there were no privacy violations around publishing personal data of public defenders.
“The core question to be addressed in the present case is whether Article 10 of the Convention can be interpreted as guaranteeing the applicant NGO a right of access to information held by public authorities,” the judges said in point 71 of their judgement.
The court says (point 156) that a “right or obligation” to access information can arise when a court orders it to be or, importantly for this case, “where access to the information is instrumental for the individual’s exercise of his or her right to freedom of expression”.
Law firm 11KBW, which had representatives arguing for both sides of the case, summed up the decision: “There is now a defined (if not unconfined) human right of access to information.”
The incredibly complex case saw privacy and campaign groups from outside of HUngary (including the UK’s Campaign for Freedom) get involved in the arguments. The UK government – which has an interest in a common law right to information – also joined the case and argued that Article 10 didn’t apply. It said that if the court were to recognise a right to information it would go further than the human rights law had intended.
One of the deciding factors in the case was the availability of Freedom of Information (aka access to information) laws across Europe. The justices said that 31 Council of Europe members “recognise” the the ability to access information in their own national legislations.
The decision does not automatically apply to each individual though, the case is more nuanced than that. “It must be ascertained whether the information sought was in fact necessary for the exercise of freedom of expression,” the judges say in point 159. This means that information falling under the Article 10 right should be serving a public good, enhancing debate, and needed as part of freedom of expression.
As highlighted by 11KBW lawyers, the court gave four specific areas when accessing information could be needed for freedom of expression: the purpose of the information request, the nature of the information, the role of the application, and if the information is readily available and accessible.
The judgement (point 168) says: “The Court considers that an important consideration is whether the person seeking access to the information in question does so with a view to informing the public in the capacity of a public ‘watchdog'”
However, the person doesn’t have to be an NGO or journalist to have their Article 10 rights infringed. Academics, bloggers and “popular” users of social media may be covered by the specific court decision (168).