Finland

European Court of Human Rights: Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland

IRIS 2017-8:1/1

Dirk Voorhoof

Human Rights Centre, Ghent University and Legal Human Academy

Following the Chamber judgment of the European Court of Human Rights (ECtHR) two years ago (see IRIS 2015-8/1), the Grand Chamber has also come to the conclusion that the right to freedom of expression and information was not violated in Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland. By fifteen votes to two the Grand Chamber found that a prohibition issued by the Finnish Data Protection Board that had prevented two media companies from publishing personal taxation data in the manner and to the extent that they had published these data before was to be considered as a legal, legitimate and necessary interference with the applicants’ right to freedom of expression and information. The ECtHR approved the approach of the Finnish authorities, who had rejected the applicants’ reliance on the exception provided in respect of journalistic activities by the law which protects personal data.

The ECtHR observed that at the heart of the present case lay the question of whether a correct balance had been struck between the right to freedom of expression and press freedom under Article 10 of the ECHR, on the one hand, and the right to privacy under Article 8 of the ECHR, on the other hand (both rights must be accorded equal respect). In addition, the ECtHR referred to a set of principles that are (i) related to press freedom, including “the gathering of information (as) an essential preparatory step in journalism and an inherent, protected part of press freedom” and (ii) related to privacy protection, emphasising that “the fact that information is already in the public domain will not necessarily remove the protection of Article 8 of the Convention”. The ECtHR was of the opinion that the interference at issue was one that was prescribed by law and that had pursued the legitimate aim of protecting the reputation or rights of others. The question however remains whether the interference at issue was necessary in a democratic society. The relevant criteria in such a case are: a contribution to a debate of public interest, the degree of notoriety of the person affected, the subject of the news report, the prior conduct of the person concerned, the content, form and consequences of the publication, the way in which the information was obtained (and its veracity), and the gravity of the penalty imposed on the journalists or publishers.

The ECtHR pointed out that the derogation of journalistic purposes (which is indeed provided by the Finnish Personal Data Act) “is intended to allow journalists to access, collect and process data in order to ensure that they are able to perform their journalistic activities, themselves recognised as essential in a democratic society”, while the right of access to public documents does not by itself justify the dissemination en masse of such “raw data in unaltered form without any analytical input”. The ECtHR was not persuaded that the publication of taxation data in the manner and to the extent undertaken by the applicant companies contributed to a debate of public interest, or that its principal purpose was to do so. Rather, considered that the dissemination of the data at issue might have enabled curious members of the public to categorise named individuals, who are not public figures, and that this could be regarded “as a manifestation of the public’s thirst for information about the private life of others and, as such, a form of sensationalism, even voyeurism”. Because the impugned publication cannot be regarded as contributing to a debate of public interest, nor as a form of political speech, it cannot enjoy the traditionally privileged position of such speech, which calls for strict scrutiny by the ECtHR of interferences with press freedom, and allows little scope for restrictions under Article 10 § 2 of the ECHR. The vast majority of the Grand Chamber agreed with the findings at the domestic level “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 it had been done solely for a journalistic purpose, within the meaning of domestic and EU law”. This led the ECtHR to the conclusion that the Finnish authorities had acted within their “margin of appreciation” in striking a fair balance between the competing interests at stake. Therefore, the ECtHR found that there had been no violation of Article 10 ECHR.

The Grand Chamber on the other hand confirmed the finding of a violation of Article 6 § 1 of the ECHR (right to a fair trial), as the length of the proceedings at the domestic level (six years and six months) had been excessive and had failed to meet the “reasonable time” requirement, even taking into account the complexity of the case.