Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Contracts Expression
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Two companies in Finland, Satakunnan Markkinapörssi Oy and Satamedia Oy published annual taxable income and assets of individuals in a magazine and in 2003, the second company began to publicly provide taxation information to third parties via SMS service. In 2003, the Office of the Data Protection Ombudsman, an independent authority operating in connection with Finland’s Ministry of Justice, requested the Data Protection Board to prevent the companies fromm publicly processing and publishing taxation information of individuals, alleging that such actions were in violation of the country’s Personal Data Act. The board dismissed the request and ruled that the publication of information was a rightful derogation from the Act based on the companies’ journalistic right. In 2005, the Helsinki Administrative Court upheld the board’s decision.
In 2009, the Supreme Administrative Court of Finland requested the board to forbid the companies from processing extensive taxation data for publishing purposes on the grounds that in light of balancing the right to freedom of expression against the right to privacy, the public interest did not require the companies to process and publish such substantial taxation information. Consequently, both companies discontinued publishing personal taxation data trough the magazine and the SMS service.
In 2012, the companies filed an application with the European Court of Human Rights. Among other grounds, they alleged that the administrative closure of their publication violated their right to freedom of expression. The Court noted that that the companies were not banned from publishing the taxation information in the magazine; they were only forbidden to collect, save or process taxation data in the manner and to the extent that had been the case in 2002 and to forward this information to an SMS service. It found it reasonable for the domestic courts of Finland to strictly interpret the companies’ right to freedom of expression in order to protect the taxpayers’ right to privacy. Accordingly, the Court ruled that the ban did not violate the companies’ right to freedom of expression under Article 10 of the European Convention on Human Rights.
This case was brought against the government of Finland by two Finnish limited liability companies for violating their right to freedom of expression, excessive length of domestic proceedings, and discrimination. The companies published personal taxation and assets data in a magazine and through an SMS service.
The Office of the Data Protection Ombudsman (DPO), an independent authority operating in connection with Finland’s Ministry of Justice contacted the companies and informed them that they could keep collecting the data but could no longer publicly publish them. The companies refused to comply, arguing that the request was in violation of their freedom of expression. Consequently, in April of 2003, the DPO sent a letter requesting the Data Protection Board to order to companies to stop publishing the data. This request was dismissed in January of 2004. Thereafter, the DPO appealed this decision to the Helsinki Administrative Court. The Appeal was rejected in September 2005.
In 2007, the DPO filed an appeal with the Supreme Administrative Court. The court requested a preliminary ruling from the European Court of Justice. The Court of Justice ruled that under Directive 95/46/EC, processing and publishing taxation information could be classified as “journalistic activities if their object was to disclose to the public information, opinions or ideas, irrespective of the medium which was used to transmit them.” [para. 16] Subsequently, the Supreme Administrative Court held that after balancing the right to freedom of expression against the right to privacy, the publication of the data could not be considered as part of the companies’ journalist activity because “[t]he public interest did not require such publication of personal data to the extent seen in the present case.” [para. 17]
Pursuant to its ruling, the Supreme Administrative Court quashed the previous decisions and ordered the board to forbid the processing of taxation data for publishing purposes. The companies shut down the SMS-service and only published the information in the magazine until fall of 2009. The companies then appealed the directives of the board to the Helsinki Administrative Court, which was later transferred to the Turku Administrative Court. The Turku Administrative Court rejected the appeal. In 2012, the Supreme Administrative Court again upheld the decision of banning the companies from publishing the taxation information.
In December 2012, the companies filed an application with the European Court of Human Rights.
The companies contended that maintaining public access to taxation data of individuals had been authorized by Finland’s legislature and that the country’s Personal Data Act did not prescribe restrictions to freedom of expression. They argued that the government’s ban on their effort to publish the data amounted to censorship, which is strictly prohibited by the Finish Constitution. They also noted that the ban was not “necessary in a democratic society” exception of the European Convention on Human Rights because “publishing of taxation data was common, frequent and expressly accepted by the Finnish legislator.” [para. 44]
The government of Finland, on the other hand, argued that the ban imposed on the companies was necessary “for the protection of the reputation or rights of others, in particular for the protection of private life.” It noted that the extensive publication of the taxation information did not serve “the interests of public debate” and instead, it mainly satisfied the curiosity of third parties who were given access to the information both by the magazine and SMS service.
The European Court of Human Rights first examined whether there was an interference with the right to freedom of expression under Article 10 of the Convention. It ruled that even through the Data Protection Board did not expressly ban the companies from publishing, its prohibition on collecting, saving, and processing such data caused the companies to discontinue their publication effort. As such, the Court found the ban an interference on freedom of expression.
The second issue was whether “the interference was prescribed by law and pursued a legitimate aim.” [para. 54] The Court found that the ban was made pursuant to the Personal Data Act because the underlying question before the domestic courts of Finland was whether the journalistic exception provided by the Act could be applied to the companies. The Court also held that the interference was based on the legitimate aim of protecting reputation or rights of others.
The third issue was whether such interference was “necessary in a democratic society” within the meaning of Article 10(2) of the Convention. The Court noted the importance of the press in society in imparting information on matters of public interest, as well as the the right to respect for private life of others enshrined in Article 8 of the Convention. In balancing these two fundamental rights, the Court considered a number of criteria, such as: “(1) contribution to a debate of general interest; (2) how well-known is the person concerned and what is the subject of the report; (3) prior conduct of the person concerned; (4) method of obtaining the information and its veracity/circumstances in which the photographs were taken; (5) content, form and consequences of the publication; and (6) severity of the sanction imposed.” [para. 62]
As applied to the case, the Court noted that the companies were not banned from publishing the taxation information in the magazine; they were only “forbidden to collect, save or process taxation data in the manner and to the extent that had been the case in 2002 and to forward this information to an SMS-service.” [para. 63] It also noted that such information was all public knowledge and therefore, the only concern of the government was the extent of which the information was published by the companies. The Court also found it reasonable for the Supreme Administrative Court to strictly interpret the companies’ right to freedom of expression to ensure the protection of the right to privacy. [para. 71-72] Utilizing this reasoning, the Court found that the ban was necessary in a democratic society and did not violate the companies’ right to freedom of expression under Article 10 of the Convention.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case seems to contract expression by allowing the government to ban the procedure through which information is disseminated. Thus, the Court seems to hold that the right to privacy is superior to the right to freedom of expression in the instant case.
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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