Access to Public Information
Company Doe v. Public Citizen
Closed Expands Expression
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The European Court of Human Rights found that a refusal to grant a Hungarian journalist access to an asylum seeker “Reception Centre” violated his right to impart information and hence his right to freedom of expression. The Reception Centre housed many asylum seekers entering Hungary and there had been allegations that the living conditions were inhumane. The journalist sought permission to enter the Centre in order to interview asylum seekers, take photographs and report on the conditions. Hungarian authorities rejected his request, citing concerns for the privacy and security of the asylum seekers. The European Court of Human Rights emphasized that newsgathering, including first-hand observation, is an essential part of press freedom. It found that the authorities had failed to properly consider the journalistic purpose and public interest in reporting on Government management of the refugee crisis. In light of those circumstances, there was little scope for restrictions on freedom of expression and the Court found a violation of Article 10 of the European Convention on Human Rights.
The applicant was Illés Szurovecz, an Hungarian journalist at abcug.hu, an Internet news portal. In September 2015, he lodged a request with the immigration authorities to have access to the Debrecen Reception Centre to write a report on the living conditions of asylum seekers that would have included pictures and interviews. He specified that photographs would have only been taken with the permission of the individuals concerned and that should it have been necessary, he would have obtained a waiver each time.
The Office of Immigration and Nationality (OIN) rejected his request noting that there was constant media interest in asylum seekers and regular visits to the Reception Centre would have infringed on their private lives and could endanger their security.
A judicial review of this refusal was rejected by the Budapest Administrative and Labour Court. The Court declared his action inadmissible because the refusal was not an administrative decision under the relevant domestic law and was not therefore subject to judicial review.
Relying on Article 10 (freedom of expression), the journalist brought the case before the European Court of Human Rights and complained that the authorities had prevented him from reporting first-hand on conditions at the Debrecca Reception Centre at the peak of the refugee crisis in Hungary.
The primary issue before the European Court of Human Rights (Court) was whether the authorities’ refusal to grant the journalist access to the Reception Center constituted an interference with his right to receive and impart information as guaranteed under Article 10 ECHR.
In order to determine whether there had been an interference, the Court considered that the journalist was denied access to the Reception Centre to conduct interviews for an article on the living conditions of asylum seekers residing there. The refusal prevented him from gathering information first hand as well as from verifying information about the detention conditions provided by other sources. Relying on prior case law, the Court found that the gathering of information was an essential preparatory step in journalism and therefore was an inherent and protected part of press freedom. Obstacles created in an effort to hinder access to information in the public interest could discourage those working in the media, or related field, from investigating such matters. As a result, the refusal in the present case adversely affected the ability of the media to play their role of “public watchdog.” Therefore, there had been an interference with Szurovecz’s freedom of expression insofar as it restricted his freedom of movement to gather information while conducting his professional activities.
The Court then went on to apply the three-part test to determine whether the interference was prescribed by law, pursued a legitimate aim and was necessary in a democratic society, as required under Article 10 (2) of the European Convention on Human Rights. It held that it was “prescribed by law” as the restriction on the applicant’s access to the Reception Centre was based on Section 2 of the Decree no. 52/2007 of the Ministry of Justice. Further, it pursued the legitimate aim of protecting the private lives of asylum-seekers.
The Court had then to assess whether the interference was necessary in a democratic society. Recalling Bédat v. Switzerland, the Court established that “necessary” implies a pressing social need, and that the restriction must be also proportionate to the legitimate aim pursued and the justification must be “relevant and sufficient” in light of the context of the case.
It first noted that Szurovecz intended to conduct research for an article about the living conditions of the asylum seekers at the Reception Centre. At the material time, there were a large number of asylum seekers entering the territory of Hungary, a situation that was commonly characterised as a “refugee crisis” and was widely reported in the media. Moreover, the Reception Centre had been subject of an investigation by the Commissioner for Fundamental Rights who had found that the living conditions amounted to inhuman and degrading treatment. The Court pointed out that the public interest in reporting from certain locations was especially relevant where the authorities’ handling of vulnerable groups was at stake. The “watchdog” role of the media assumed particular importance in such contexts in order to hold authorities accountable for their conduct. It was therefore undisputed that the article, which Szurovecz intended to prepare, concerned a matter of public interest where there was little scope for restrictions of freedom of expression under Article 10 paragraph 2 of the Convention.
According to the Court, the domestic authorities should have taken into consideration the significant public interest in receiving balanced and objective reporting on the welfare of the asylum seekers and related aspects of the refugee crisis. However, the Court noted that the authorities concerns about allowing a journalist access to the Reception Centre on the grounds that any information potentially revealing the identity or location of refugees and asylum seekers could endanger their safety and private lives, were “undoubtedly relevant” for the purposes of the necessity test.
Turning to examine whether the reasons adduced by the domestic authorities were also sufficient, the Court considered there was a lack of European consensus with regard to media access to facilities accommodating asylum seekers. In fact, in twenty-four member States, regulations were silent on media access to reception centres. Some member States had time, place, manner restrictions for journalists in order to protect the rights of the residents. For instance, in ten member States media representatives were required to gain prior authorisation or give prior notice of their intent to visit reception centres (such as in Austria, France, the Netherlands, Norway and Poland). In a few States, journalists were afforded broader access than ordinary visitors (Germany, Italy, Romania, Russia, Serbia and Turkey) which was rooted in legislation concerning freedom of the press or freedom of information on matters in the public interest. Against this lack of European consensus, the Court might ordinarily accept a wider margin of appreciation. However, in the present case, the Court considered that the domestic authorities did not properly weigh the necessity of the restriction based on personality rights in light of the public interest value of the proposed research.
Szurovecz had explained to the domestic authorities that he would only have taken photos of individuals who had given their prior consent and, if needed, written authorization. The Court noted that the domestic authorities had not taken any notice of this argument. Under the circumstances, the need to protect the private lives as well as the safety of the people residing in the Reception Centre were certainly relevant but not sufficient to justify the interference with Szurovecz’s freedom of expression.
The Court rejected the Government’s claim that the right to access information did not fall within the scope of Article 10, and that the restriction did not prevent Szurovecz from publishing his “opinions” as he could easily rely on alternate sources of information already available publicly. While it was true that information about the Reception Centre was available through the monitoring activities of NGOs, they generally focused on areas relevant for their work and did not necessarily cover the same issues the journalist intended to examine. Similarly, information from sources outside the Reception Centre might not be as reliable as a first-hand account based on personal interviews and experience. The Court also recalled that national courts cannot instruct the press on what reporting techniques should be used in their investigations. Therefore, the availability of other sources of information and research techniques was not a sufficient reason to justify the interference or constitute a substitute for personal access to the Reception Centre.
Finally, the Court stated that in view of the importance of the media in a democratic society and of reporting on matters of considerable public interest, any justifications for restrictions on freedom of expression had to be convincingly established. In the present case, the Office of Immigration and Nationality put forward a summary reasoning which had not balanced the interests at issue. Further, it failed to convincingly demonstrate that denying the journalist the ability to report from inside the facility was proportionate to the aims pursued and thus had met a “pressing social need”.
In conclusion, the Court unanimously held that there had been 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 it prescribes strict scrutiny when domestic authorities evaluate a journalist’s request to access reception facilities for asylum seekers. The European Court of Human Rights upheld prior case law to rule that journalists must be granted access to certain locations as part of their newsgathering and “watchdog” responsibilities, particularly state owned or managed locations that involve vulnerable groups.
Dirk Voorhoof and Ronan Ó Fathaigh, of the Strasbourg Observers, wrote in their analysis that the unanimous ruling “should serve a powerful precedent for journalists throughout Europe seeking access to asylum-seeker detention centres,” as well as shield them from other forms of intimidation.
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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