Right to Privacy vs Freedom of Expression
The European Court of Human Rights (ECHR), through its judgment delivered on 21 July 2015 on the case of Satakunnan Markkinaporssi Oy and Satamedia Oy v. Finland, reiterated the position of the court on cases that concern competing interests between right of an individual’s privacy and journalistic freedom of expression.
Background of the Case
Satakunnan Markkinaporssi Oy (“the first applicant”) has been the publisher of Veroporssi magazine since 1994. This magazine mainly published information about natural persons’ taxable income and assets, which is accessible to the public under Finnish law. The first applicant had cooperation with Satamedia Oy (“the second applicant’), where the second applicant provided taxation information of any person upon request through SMS (SMS-service). The database of such information was that published on the magazine.
Subsequently, the Data Protection Ombudsman (DPO) requested the two applicants to cease their activity because the applicants had no right to establish such personal data registers, and the manner in which the applicants processed these personal data was not legal. Yet, the request was ignored.
After the request was ignored, DPO requested the Data Protection Board (DPB) to enforce its request in April 2003, but was rejected. DPO then appealed to the Helsinki Administrative Court in February 2004, and failed again. The ground for the two refusals are the same, Veroprossi magazine had a journalistic purpose and enjoyed derogation provided by the Personal Data Act. The same derogation was also provided for in EU Directive 95/46/EC.
In October 2005, DPO further appealed to the Supreme Administrative Court (“SAC”), where SAC decided to seek a primary ruling from the Court of Justice of EU (“CJEU”) on the interpretation of Directive 95/46/EC first. CJEU, after balancing the right of privacy and the freedom of expression, interpreted that processing of data in public domain could be regarded as journalistic activities only “if the object was to disclose to the public information, opinions or ideas, irrespective of the medium which was used to transmit them”. Following the interpretation from CJEU, SAC quashed the decision of lower courts in September 2009.
SAC agreed that “it was necessary to interpret notions relating to freedom of expression, such as journalism, broadly. However, when balanced against the right to privacy, any derogations to the latter were to be kept only to what was strictly necessary”, and accepted the view of CJEU that “the decisive factor the decisive factor was to assess whether a publication contributed to a public debate or was solely intended to satisfy the curiosity of readers”. In reaching its conclusion, SAC gave the following reason,
“the publication of the whole database collected for journalistic purposes could not be regarded as journalistic activity. The public interest did not require such publication of personal data to the extent seen in the present case, in particular as the derogation in the Personal Data Act was to be interpreted strictly” (Para. 17)
As a result, DPB had ordered the SMS-service to be ceased and the taxation data not to be published in such a large extent, whereas the magazine has not appeared since Autumn 2009.
In February 2010, the applicants decided to appeal against the order made by DPB. The appeal was dismissed later in the Turku Administrative Court and SAC. Thus, the applicants made an application against the Republic of Finland lodged with ECHR on 18 December 2012.
ECHR has made ruling on several issues, and, inter alia, the ruling on the alleged violation of Article 10 of the European Convention of Human Rights (“Convention”) is reproduced as follows. ECHR, first of all, recognized that the order of DPB constituted an interference with the applicants’ rights to impart information pursuant to Article 10 (1) of the Convention. However, ECHR contended that the interference was prescribed by law under Article 10 (2) of the Convention and pursued the legitimate aim of protecting the reputation or rights of others. At last, ECHR re-asserted the ruling of SAC and quashed the appeal after looking into the proportionality of the interference. ECHR agreed that “the public interest did not require such publication of personal data to the extent” and that the applicants “were not prohibited generally from publishing the information in question but only to a certain extent”, which made the interference proportional.
This case seems to be another typical case where the right of privacy and freedom of expression compete with each other. However, when you look into the details, one particular point must have grasped your attention, the data at stake was originally made public by the government. The question that follows would be “What is the problem of publishing something which has been originally published?” The ruling in this case seems absurd since what the applicants were doing was to make the data more reader-friendly.
ECHR has not really clarified what the proper way of using some publicly available data is. The only guideline given is whether the alleged activity was conducted for public interest. For instance, if a magazine made an analysis with the data, the article can be of public interest because people can look at demographic patterns or even assess the current taxation policy. Does it mean that publishing the data with some analysis would attract the derogation to apply? If that is the case, how much analysis will be needed? Therefore, it is really hard to draw a line here to determine whether certain publication can be recognized by the law as journalistic activity.