Privacy, Data Protection and Retention
Lillo-Stenberg v. Norway
Closed Contracts Expression
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The Grand Chamber of the European Court of Human Rights found no violation of the right to freedom of expression where Finnish courts and authorities had prohibited two companies from processing personal tax data in the manner and to the extent that they had. The companies had collected and published information about the earned and unearned income and taxable net assets of 1.2. million natural persons in Finland, first through a newspaper and later through a text-messaging service by which people could text someone’s name to a service number and receive that person’s taxation information. In these circumstances, the Grand Chamber gave a wide margin of appreciation to the domestic authorities in balancing the right to freedom of expression against the right to respect for a private life. The Grand Chamber could not find that the publication of the tax data en masse in this case contributed to a debate of public interest. It also noted that although (and rather exceptionally) certain tax data was publicly accessible in Finland, a distinction was to be drawn between this accessibility and the unlimited extent to which the data was published by the companies as it rendered the data accessible in a manner and to an extent not intended by the legislator. The Court concluded that the restrictions were prescribed by law and pursued the legitimate aim of protecting the right to privacy of taxpayers.
In Finland, certain taxation information about natural persons, including their taxable income and assets, was accessible to the public. Since 1994, Satakunnan Markkinapörssi Oy (Satakunnan) had collected official tax data from the Finnish tax authorities and published information about natural persons’ taxable income and assets in the Veropörssi newspaper. Several other companies also published taxation data in Finland (but not to the same extent as Satakunnan).
In 2002, Satakunnan published 17 issues of Veropörssi containing the names, surnames, taxable net assets, and earned and unearned income of 1.2. million natural persons in Finland. Those who were included in the data set earned an annual taxable income that exceeded certain thresholds (mainly from approximately 10,000 EUR to 13,500 EUR). Each issue focused on a certain geographical area, and presented the information in the form of an alphabetical list organized according to municipality and income bracket.
In 2003, Satakunnan began working with a second company, Satamedia Oy (Satamedia), and a mobile telephone operator to provide a text-messaging (SMS) service through which people could text someone’s name to a service number and receive that person’s taxation information (provided it had already been published in Veropörssi).
Between 2000 and 2001, the two companies ordered taxation data from the Finnish National Board of Taxation. In response, the National Board of Taxation invited the applicant companies to provide further information regarding their request and indicated that the the National Board of Taxation could not disclose the data if the companies were going to continue to publish it in the way they were doing. The companies then cancelled their request, and paid people to collect the data manually at local tax offices.
In 2003, the Data Protection Ombudsman (Ombudsman) contacted the two companies and advised them that, although the publishing of tax data was not prohibited under Finnish law, they had to cease publishing such data in the manner and to the extent that they were doing. However, the companies refused to abide by this request as they believed it infringed their right to freedom of expression. The Ombudsman then asked the Data Protection Board (Board) to prohibit the applicant companies from processing the taxation data in the manner and to the extent they had been doing and from passing the data to the SMS service. The Board rejected this request on the basis that the derogation concerning journalism applied to the publication of Veropörssi, and that the information provided to the SMS service had already been published and was therefore not protected by data protection law. The Ombudsman appealed this decision to the Helsinki Administrative Court who rejected the appeal. The Ombudsman also appealed this decision to the Supreme Administrative Court who requested a preliminary ruling from the Court of Justice of the European Union (CJEU) on the interpretation of Directive 95/46/EC (Data Protection Directive).
In December 2008, the CJEU confirmed that the activities of the two companies constituted “data processing” under the Data Protection Directive, and that the processing of data already published in the media would still fall within the scope of the Data Protection Directive. The CJEU went on to state that the publishing of data from documents which were in the public domain under domestic legislation could be classified as “journalistic activities” if “their sole object was the disclosure to the public of information, opinions or ideas, irrespective of the medium which was used to transmit them”. [para. 20] The CJEU left it to the national courts to determine whether the derogation applied to the data processing of the two companies.
In September of 2009, the Supreme Administrative Court, applying the ruling of the CJEU and jurisprudence of the European Court of Human Rights, quashed the previous administrative decisions and referred the case back to the Board for a fresh examination. In doing so, the Supreme Administrative Court requested that the Board prohibit the processing of taxation data by the applicant companies “in the manner and to the extent carried out in 2002”. In its decision, the Supreme Administrative Court recognized that the collection and storing of the data for Veropörssi‘s publishing activities would be protected by the derogation available for journalism (provided it was properly protected). However, it found that the derogation for “processing of personal data for journalistic purposes” could not cover “large-scale publication of the journalistic background file, almost verbatim, as catalogues”. [para. 22] It also found that the processing related to the provision of the SMS service was not covered by the derogation either.
In November 2009, following a fresh examination, the Board prohibited Satakunnan from processing taxation data in the manner and to the extent that it had in 2002, and prohibited Satamedia from collecting, storing, or forwarding to an SMS service any data received from Satakunnan’s database and published in Veropörssi. The companies appealed the decision of the Board, which was rejected in 2010 by the Turku Administrative Court. The companies appealed again to the Supreme Administrative Court, which rejected the appeal reiterating that the case did not concern the right to publish taxation information as such and did not amount to preventative censorship.
The SMS service was shut down in 2009, and Veropörssi had not appeared since the autumn of that year. Satakunnan declared bankruptcy in 2016. The two companies brought the case to the European Court of Human Rights where the Fourth Section Chamber concluded unanimously that Finland had not violated the companies’ right to freedom of expression. The two companies then requested referral to the Grand Chamber, which issued its decision on June 27, 2017.
The issue for the Grand Chamber of the European Court of Human Rights (Court) to decide was whether the restrictions imposed by the Finnish authorities and courts on the processing of tax data carried out by Satakunnan and Satamedia violated the companies’ right to freedom of expression. The Court began its analysis by acknowledging that the case before it was unusual because the taxation data at issue was public in Finland (only a small number of Council of Europe States had adopted this practice) and many other Finnish media outlets also published the relevant tax information (albeit not in the same manner and to the extent as the applicant companies).
The Court then proceeded to summarize its case law on the right to freedom of expression (Article 10 of the European Convention on Human Rights) and the right to a private life (Article 8 of the European Convention on Human Rights). In relation to the latter, the Court recognized that the companies’ activities concerned the private life of those individuals whose taxation data was being collected, processed and published. In its reasoning, the Court stated that “where there has been compilation of data on a particular individual, processing or use of personal data or publication of the material concerned in a manner or degree beyond that normally foreseeable, private life considerations arise”. [para. 136] The fact that the data was already public would not remove the protection of Article 8.
Next, the Court established that there had been an interference with the applicant companies’ right to freedom of expression and proceeded to analyse whether the interference could be justified under Article 10(2) of the European Convention on Human Rights. The Court first looked at whether the interference was “prescribed by law”, which required that the legal basis to an interference be drafted with sufficient precision to enable a person to regulate his or her conduct. The Court found that the relevant data protection legislation and the nature and scope of the journalistic derogation were sufficiently foreseeable, and those provisions were also applied in a sufficiently foreseeable manner. In this regard, the Court placed considerable weight on the fact that the companies were media professionals who should have been aware of the possibility that their activities would fall outside the journalism derogation. The Court also gave weight to the fact that the applicants had circumvented the normal channels for accessing taxation data by hiring people to collect it manually which, according to the Court, suggested some anticipation on the part of the applicants of the difficulties in relying on the journalism derogation.
The Court then assessed whether the restrictions imposed on the applicants pursued a “legitimate aim”. In this respect, the Court concluded that the restrictions pursued the legitimate aim of protecting the right to privacy of taxpayers. The Court noted that the impact of the applicants’ publications on taxpayer’s privacy could be evidenced by the number of complaints received by the Ombudsman against the publications. The Court also noted that the applicants’ publications could even affect the privacy of those taxpayers not included in them as others could guess their income level based on their non-inclusion.
The Court then proceeded to assess whether the restrictions applied met the “necessary in a democratic society” standard, and whether the domestic courts struck a fair balance between the right to freedom of expression and the right to respect for private life. The Court set out the following criteria that were to be considered when balancing the two rights: (i) the contribution to a debate of public interest, (ii) the degree of notoriety of the person affected, (iii) the subject of the news report, (iv) the manner of obtaining the information and its veracity, (v) the content, form and consequences of the publication, and (vi) the gravity of the sanction imposed.
The Court first turned to the contribution of the publication to a debate of public interest. In doing so, the Court recalled that “articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well-known that person might be, cannot be deemed to contribute to a debate of public interest”. [para. 170] Taking into account the publication as a whole and the context in which it was published, the Court concluded that it was not convinced that the publication of taxation data in the manner and to the extent done by the companies contributed to a debate of public interest or that its principal purpose was to do so. The Court noted the distinction drawn between processing of data to compile journalistic files, and the publication en masse of the raw data contained in such files. The Court concluded that the existence of a public interest in the former activity did not necessarily or automatically mean it attached to the latter activity. The Court determined that the impugned publication in this case did not amount to the “disclosure to the public of information, opinions and ideas” nor could it find that the publication contributed to a debate of public interest. [para. 178] The Court suggested that the publication could be viewed as a form of sensationalism or even voyeurism.
With regard to the subject matter of the publication and how well known the persons concerned were, the Court noted that the publication related to all taxpayers and only a few were individuals with a high net income, public figures, or well-known personalities. The Court also responded to an argument made by the applicants that due to the extent of publication individuals would “blend in” and would, therefore, experience less of an interference with their private life. The Court rejected this argument, noting that it ignored the fact that the data was provided to the tax authorities for one purpose but accessed by the applicants for another. The Court then turned to the manner of obtaining the information and its veracity. The Court noted that the manner of obtaining the information, while not illegal, had circumvented the checks and balances established by the domestic authorities (e.g. the obligation to substantiate that the data would be used for a journalistic purpose and not be published as a list).
In relation to the content, form and consequences of the publication, the Court noted the distinction between the accessibility of the relevant tax data through the tax authorities, and the manner and extent to which the applicants published the data. For instance, the Court highlighted the safeguards that were in place to limit accessibility to the publicly available tax data (e.g. it could only be consulted at local tax offices), and concluded that the publication rendered the data accessible in a manner and to an extent not intended by the legislator. The Court also noted that the domestic courts had not sought to interfere with the collection of the data, an “activity which goes to the heart of press freedom”. [para. 191] Moreover, the Court concluded that the domestic authorities enjoyed a wide margin of appreciation in deciding how to strike a fair balance between Articles 10 and 8 in this case.
Finally, with regard to sanctions, the Court noted that the companies were not prohibited from publishing taxation data, or from publishing their newspaper. It was only a prohibition on publishing in the manner and to the extent that they had been. Furthermore, the Court held that “the fact that, in practice, the limitations imposed on the quantity of the information to be published may have rendered some of their business activities less profitable is not, as such, a sanction within the meaning of the case-law of the Court”. [para. 197]
Thus, the Court concluded that the interference with the applicants’ right to freedom of expression was “necessary in a democratic society” and that the Finnish authorities had acted within their margin of appreciation. Accordingly, by 15 votes to 2, the Court found that Finland had not violated the applicants’ right to freedom of expression.
Judges Sajó and Karakaş issued a dissenting opinion. The two judges disagreed with the majority on a number of points. They took issue with the finding that the companies were not engaged in journalistic activity and that their publication had not contributed to public interest. The judges were particularly concerned about language in the majority judgment suggesting that some form of “analytical input” was required before a publication can be classed as journalistic. They also reasoned that the publication of more information cannot automatically mean that the information is of lesser value, has less public interest, is voyeuristic, or is prone to sensationalism. Instead, they believed it contributed to the public interest because it promoted fiscal transparency.
The two judges also concluded that the interference was not provided by law, since it was unforeseeable that the companies would not be protected by the derogation for journalism. The judges also took issue with the wide margin of appreciation given to the domestic courts to limit a law (on making tax data public) that had been democratically debated and passed. On the issue of margin of appreciation, the judges also highlighted their concerns that giving a wide margin to domestic courts to determine the boundaries of concepts like “journalistic activity” was implicitly endorsing a position adopted by Member States that journalism critical of a State is not journalistic. The judges also listed five factors that the majority failed to take into account in their judgment; (i) the interference concerned the press and journalism, (ii) the information published was not intended to (nor did it actually) cause any harm, (iii) the information was public and was not subject to confidentiality, (iv) the companies acted in good faith and did not intend to mislead, and (v) Finnish taxpayers had little or no expectation of privacy over the information published.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case contracts expression by finding no violation of the right to freedom of expression where domestic authorities and courts restricted the publication of taxation data in catalogues, despite the fact that the data was already publicly accessible. The judgment is particularly problematic in its endorsement of the domestic courts’ finding that the publication of entire data sets in a journalistic file cannot be deemed to be publication for journalistic purposes, or publication in the public interest. Furthermore, the Court failed to acknowledge that Finland had never by law, nor through the administrative and judicial decisions, clearly defined what the acceptable limits were regarding the manner and the extent to which taxation data could be published in Finland. The decisions only determined that the applicants could not publish taxation data “in the manner and to the extent that had been the case in 2002”. This brings about uncertainty as to the circumstances under which publication of this kind of data will fall within the journalistic derogation from data protection legislation and, therefore, could have a chilling effect on data journalism.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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