Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Expands Expression
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The European Court of Human Rights found that the Lithuanian authorities had violated Article 10 of the European Convention on Human Rights by refusing to grant a prisoner access to an Internet website providing education-related information. The applicant, a prisoner serving a sentence at the Pravieniškės Correctional Home, had written to the Ministry of Education and Science requesting information about the possibility of enrolling at university. The Ministry subsequently replied informing him that relevant information about study programs could be found on its website. The prison authorities refused the applicant access to the Internet to view this website. In finding a violation of the applicant’s right to receive information, the European Court of Human Rights reasoned that the national authorities had failed to take into account the fact that the Internet access was sought so the prisoner could pursue his education, which was important for his rehabilitation and subsequent reintegration into society. Furthermore, the European Court of Human Rights was not convinced that sufficient reasons had been put forward to justify the interference with the applicant’s right to receive information in this particular case. As a result, the European Court of Human Rights found the interference was not “necessary in a democratic society”.
The applicant, Henrikas Jankovskis, was a prisoner serving a sentence in the Pravieniškės Correctional Home in Lithuania.
On May 30, 2006, he sent a request to the Ministry of Education and Science (Ministry) for information about the possibility of pursuing university studies via distance learning so that he could acquire a university degree in human rights law. In the letter, he mentioned that he was a prisoner and, thus, could not physically attend any place of study.
By letter of June 12, 2006, the Ministry indicated that information about study programs could be found on a specific website (www.aikos.smmm.lt), which was “an open system for providing information, consultation and guidance, the main aim of which is to provide information about opportunities for learning in Lithuania.” [para. 7]
On June 28, 2006, the applicant wrote to the authorities at the Pravieniškės Correctional Home to request access to the website, as suggested by the Ministry, as well as Internet sites hosting his email accounts. On July 1, 2006, the authorities replied in the negative, stating that the Ministry’s reply was not comprehensive and that, among other things, it had not taken into account the fact that the applicant was a prisoner. Moreover, access could not be granted because no domestic law allowed prisoners to use the Internet or have a mailbox.
On August 1, 2006, the applicant started court proceedings to challenge the prison authorities’ refusal to grant him Internet access. The authorities argued before the courts that a number of fraudsters had cheated people out of large sums of money with the help of mobile phones in prison, and that Internet access could result in similar activity. The Kaunas Regional Administrative Court dismissed the applicant’s case, and ruled that giving Internet access to prisoners was incompatible with other existing legislative prohibitions on the use of telephone and radio communication devices in prison. The Kaunas Regional Administrative Court reasoned that these prohibitions were aimed at preventing crimes being committed in prison.
The applicant appealed, arguing that the lower court failed to take into account the fact that the core of his complaint concerned a restriction on his rights to education and to obtain information. On December 11, 2007, the Supreme Administrative Court dismissed the applicant’s complaint. In its judgment, it reasoned that the right to use the Internet was not absolute, and it could be restricted to certain social groups. It noted that there was no legal provision in Lithuania permitting prisoners to use the Internet, and the right of prisoners to have a computer could not be interpreted so widely as to encompass the right to have Internet access. Finally, the Supreme Administrative Court noted that, if prisoners did have access to the Internet, the prison authorities would be hampered in their fight against crime by being unable to fully monitor the prisoners’ activities.
The applicant complained to the European Court of Human Rights that the denial of Internet access in prison had prevented him from receiving education-related information in violation of Article 10 of the European Convention on Human Rights. He argued that the denial of Internet access in his case had no connection with the aim of preventing crimes. Furthermore, he argued that the measure was disproportionate. The Government of Lithuania argued, among other things, that the information sought by the applicant could be accessed in many forms and not exclusively through the Internet.
The European Court of Human Rights (Court) found that the applicant’s right to receive education-related information under Article 10 of the European Convention on Human Rights (Convention) had been violated in the present case.
The Court first considered whether the applicant’s right to freedom of expression had been interfered with. The Court distinguished this case from cases where the authorities refused to release requested information. The Court acknowledged that the applicant’s case concerned, instead, a particular means of accessing (i.e. via the Internet) publicly-available information. [para. 53] In this regard, the Court highlighted the very important role that the Internet played “in enhancing the public’s access to news and facilitating the dissemination of information in general”. [para. 54] Nevertheless, the Court acknowledged that imprisonment inevitably entailed a number of restrictions on a prisoner’s communications with the outside world. With this in mind, the Court could not find that Article 10 of the Convention imposed a general obligation to provide prisoners with access to the Internet or to specific Internet sites. Since information relating to education was granted under the Lithuanian law, however, the Court was ready to accept that there had been an interference with the right to receive information in the present case.
The Court had to establish whether the interference was justified. The Court began by considering whether the interference was “prescribed by law”. In this regard, the Court acknowledged that no explicit prohibition on prisoners using the Internet existed in Lithuania at the time of the present case. Nevertheless, the Court reasoned that the ban on prisoners using radio and electronic communications devices, and the requirement that all prisoners’ correspondence with State authorities be conducted in writing and sent by post, meant it was not unreasonable to hold that all these prohibitions could be circumvented if prisoners had access to the Internet. According to the Court, the applicant was not left without an indication that there had been a prohibition on the use of the Internet in prison. In short, the interference was “prescribed by law”. The Court then went on to acknowledge that the interference pursued a “legitimate aim”, namely the protection of the rights of others and the prevention of disorder and crime.
When considering whether the interference was “necessary in a democratic society”, the Court noted that the website to which the applicant wished to have access contained information about learning and study programs in Lithuania. This information was directly relevant to his interest in obtaining education, and instrumental in his rehabilitation and subsequent reintegration into society. Indeed, the Court noted that the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment underlined the importance of a program of activities, including education, for the well-being of detainees. This was even more relevant for prisoners serving a sentence. [para. 59]
Moreover, the Court observed that accessing the website suggested by the Ministry of Education and Science was more efficient than making individual requests to the State authorities for specific information. The Court also noted that the information about study programs evolved constantly.
The Court then went on to criticize the Lithuanian authorities for focusing on the legal ban on prisoners having Internet access as such, instead of examining the applicant’s argument that access to a particular website was necessary for his education. The Court also noted that the authorities did not argue that providing prisoners with extended Internet access would result in the State incurring additional costs. The Court also observed that, although security considerations arising from prisoners having Internet access could be considered relevant, the domestic courts failed to give any kind of consideration to the fact that the applicant asked for access to a website created and administered by a State institution.
The Court noted the importance of Internet access for the enjoyment of a range of human rights. Indeed, the Court stated that “Internet access has increasingly been understood as a right, and calls have been made to develop effective policies to achieve universal access to the Internet and to overcome the ‘digital divide’. The Court considers that these developments reflect the important role the Internet plays in people’s everyday lives, in particular since certain information is exclusively available on [the] Internet.” [para. 62 and citing Kalda v. Estonia] The Court was also critical of the fact that the authorities did not even consider giving the applicant limited or controlled access to the relevant website, which could hardly be viewed as posing a security risk.
The Court concluded that the national authorities failed to put forward sufficient reasons to justify the interference with the applicant’s right to receive information.
In light of the foregoing, the Court concluded that the interference with the prisoner’s right to receive information was not “necessary in a democratic society” and, therefore, had amounted to a violation of Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression since the European Court of Human Rights (Court) found that the refusal of a prisoner’s access to an Internet site constituted a violation of his right to receive information. In doing so, the Court gave strong pronouncements on the importance of Internet access to the enjoyment of human rights more generally. It also observed that there was a growing recognition that access to the Internet, in itself, should be understood as a right. Although the Court does not explicitly recognize a right of access to the Internet, this case and the earlier case of Kalda v. Estonia demonstrate the Court’s willingness to find a violation of the right to freedom of expression in certain circumstances where access to the Internet has been withheld.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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