Access to Public Information, Privacy, Data Protection and Retention
Mail and Guardian Media Ltd v. Chipu N.O.
Closed Expands Expression
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In March 2019, the Supreme Court of Justice of Mexico held that the Twitter account of an attorney general was public information and, therefore, blocking its access to a journalist was illegal. Mr. Jorge Winckler Ortiz, who worked as the General Prosecutor of the State of Veracruz, had blocked from his Twitter account (@AbogadoWinckler) a journalist who filed for constitutional protection (Amparo) to get access to the account. Even though the defendant had created the account before he took the position in the office, it was being used for professional purposes. The Court held that the defendant willingly decided to put himself in a public position and be subject to public scrutiny so his privacy sphere was limited. In balancing privacy and access to information, the Court granted strengthened protection to the latter and held that the attorney general should permit the journalist access to the account.
The plaintiff is a freelance journalist who covers human rights, missing persons, and clandestine graves. He uses his Twitter account to publish his work and keep in touch with the authorities of the state of Veracruz.
In October 2017, the plaintiff realized that the attorney general of the state of Veracruz, Mr. Jorge Winckler Ortiz had blocked him from his Twitter account (user @AbogadoWinckler) limiting his access to the information published therein. For this reason, he filed constitutional protection (Amparo) for his access to information rights, asking for the immediate unblock of the account.
In May 2018, the first instance court of the State of Veracruz granted the protection and ordered the attorney general to unblock his Twitter account to the plaintiff. The judge warned that the attorney was obliged by law to promote social communication and disseminate information of public interest because it was linked to the activities carried out in his assignment. According to the first instance ruling: “The applicable regulations establish that the authority must seek communication channels with the public through digital platforms, including social networks such as Twitter” [para. 41].
Mr. Winckler filed an appeal for a review of the decision and the Judge asked the Supreme Court of Justice to resolve the issue which it accepted in October of the same year.
Judge Eduardo Medina Mora wrote the opinion of the Supreme Court of Mexico.
The Court framed the question on whether the blockade between social media users violated the human right of access to information by depriving them of gathering data and content that referred to the acts of the state prosecutor’s office or, on the contrary, upon appeal, if the obligation of the appellant to unblock the account for the journalist violated the right to privacy of Jorge Winckler Ortiz.
The plaintiff filed the constitutional protection action grounded on various human rights violations. First, he argued that the blockade damaged his right to access information from public authorities. It constituted a discriminatory measure, taken without legal procedures nor due process. According to the journalist, the right to freedom of expression protected not only his speech but also the right to seek and receive information, which is especially relevant for his work. He also emphasized that the attorney general usually shared information about his official activities using Twitter, so he could not claim that it was a personal account.
The defendant appealed the first instance decision on different grounds. He argued that part of the information published in his account was personal so it was disproportionate to order him to completely unblock it. Furthermore, the ruling had not taken into account that some of his tweets were personal and did not relate to professional or institutional activities. His Twitter account was not one of the official channels established by the Prosecutors Office, he claimed. If the plaintiff wanted official information, he could have received it through the institutional website or social media accounts. He added that the account did not refer to human rights nor missing persons and, therefore, there was no damage to the informational right of the plaintiff.
The Court considered the right to access information as part of the freedom of expression protected by international and regional conventions. The right to gather information was not absolute and could conflict with the right to privacy. For this reason, judicial authorities had to consider whether: i) the information had public relevance or interest, ii) the information was truthful or could be verified, and iii) the information was objective and impartial [para. 131]. Citing several rulings from the Inter-American Court of Human Rights, the Court concluded that, in democratic regimes, public officials and institutions had to stick to the principle of maximum disclosure. Restrictions to publicity was exceptional and limited by law.
On the other hand, the right to privacy was defined as “that which every individual ha[d] to separate aspects of his private life from public scrutiny” [para. 140]. However, given the public relevance of some information or people, the right could be limited: “the greater public exposure of these people, their right to privacy is reduced, so the perspective for the analysis of this conflict is different depending on the nature of public interest that their activities or actions have.” [para. 162]. A public person was defined by the Court as “the one that due to their activities, their position or by chance it ha[d] become an object of attention” [para. 164]. The term included “officials or public servants. This is logical, their activities [were] relevant to society because their work [was] related to the management of the functions of the State. For this reason, the community ha[d] an interest in ensuring that these [were] carried out properly” [para. 167].
In this sense, the Court affirmed that the right to privacy of public servants was “less extensive than that of the rest of the citizens for reasons exclusively linked to the type of activity they carr[ied] out, since this [could] give interest to the community” [para. 172]. The different degrees of protection for these type of cases was explained because the person voluntarily exposed himself to public scrutiny [para. 180]. “[T]he social control to which they are subject [did] not refer exclusively to their manifestations or public actions, but [could] also be extended to the activities that they carr[ied] out privately” [para. 208]. However, this did not mean that every single activity that public servants carried out had to be made public, each case had to be analyzed separately [para. 181].
Regarding the protection of these rights in social media, the Court concluded that both were legally protected and had to be balanced taking into consideration the channel’s characteristics. The analysis had to consider the use that the public servant gave to the account at the time, even if it was created only for private purposes. This determined whether the blockade represented a restriction of access to information rights.
Turning to the facts of the case, the Court noted that Mr. Winckler Ortiz signed up for Twitter in May 2011, years before he took the position as the attorney general. However, once he was designated, he began using the account to publicize his activities in the role [para. 87-88]. Furthermore, the description of the account stated “General Attorney of the State of Veracruz” [para. 242]. By including professional activities into his feed, he voluntarily put himself in a position of publicity and scrutiny different from the ones of a private person [para. 241].
In this sense, his degree of privacy protection was affected by his own will. “In such a way that, being a public person and particularly a public official, their right to privacy [was] ‘blurred’ in order to favor the right to information. This [was] so because issues of general interest, such as those related to the performance of its government management, [were] subject to a strong level of scrutiny by the media and society” [para. 244]. The information about his duties as attorney general was of public interest and was exposed to higher scrutiny and control.
Therefore, the Court concluded that the blockade of a citizen to access the content published on the account represented an unlawful restriction to his/her right to access information [para. 246]. The defendant did not present strong arguments to support that the tweets should have been considered confidential or that the plaintiff engaged in abusive online behavior.
Moreover, the Court outlined that the plaintiff was a journalist, for which, he was granted heightened protections to his right to access information to publish news of general interest.
Finally, the Court elaborated on a three-part test to check the conflict between the two rights of privacy and access to information. The first part was whether the information in the account was of a general interest to society. This requirement was met by the fact that the owner was an attorney general and shared information about his public activities. The second was whether the restriction was proportionate and justified for the intimacy it tried to protect. The Court confirmed that the blockade was not legitimate nor proportionate because any other user could access the account and it was not justified that private details were published. The third was whether the publicity of the Twitter account was justified. In this case, the account was managed by an attorney general who willingly shared information about his professional activities, putting him in a situation where had to tolerate greater scrutiny and less protection of his privacy. In no case could the account be deemed private.
Having considered all the relevant facts and rights, the Court unanimously confirmed the first instance ruling and held that the plaintiff’s right to access information was violated by the attorney general. The Court ordered the defendant to permit permanent access to the plaintiff to his account, even once he left public office. If the defendant denied granting access, the Court allowed the first instance court to demand Twitter to take action so as to permit access to the account.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by granting citizens access to the information posted by a public servant in his Twitter account. The right to seek and access information is part of the freedom of expression and, therefore, officials should not limit access to a general public interest without a legitimate purpose nor in a disproportionate manner.
Even if the account was firstly used for private purposes, when the account is used by the public figure for promoting public activities and contains information of public interest, the owner has diminished privacy protection, and the right to access expands.
The ruling broadens access to information, especially to journalists looking for access to information posted by public officials on social media.
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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