“Confusion now hath made his masterpiece!”* Advocate general reprimands Council and Commission

Posted on June 17, 2010 | Filed Under fundamental rights

Today’s opinion of advocate general Sharpston in the joined cases C-92/09 Schecke and C-93/09 Hartmut Eifert do not provide new insights into the validity of the data retention directive, as Sharpston declined to answer the two questions addressing this issue that had been put to the ECJ by a German administrative court. According to Sharpston, the “curiously phrased” and “somewhat convoluted” questions should be declared inadmissible because they are purely hypothetical.

The other questions, concerning the validity of regulations requiring the publication of personal data of farmers receiving EU subsidies, are not as hypothetical (but go beyond the the core content of this blog). Just briefly:

  • “The importance of transparency is firmly established in EU law.” (para 66)
  • “However, sometimes (as here) transparency may have to be weighed against another competing objective.” (para 70).
  • “as a matter of principle a person applying for funding from a public body such as the European Union … cannot be required, solely as a condition of obtaining that funding, to forgo a fundamental right” (para 85).
  • “Promoting transparency is, in principle, a legitimate basis for interfering with the rights to privacy and the protection of personal data. …  I am therefore prepared to accept that in principle – and I stress those words – some degree of interference with the rights to privacy and to the protection of personal data in order to promote transparency of the democratic process is ‘necessary in a democratic society’ because it corresponds to a pressing social need.” (para 94)
  • BUT:  Is the interference proportionate? “The vague (if not actually contradictory) nature of the objectives that the institutions say they are pursuing does not permit the conclusion that the measures put in place satisfy the proportionality test.” (paa 118)
  • “In my view, the institutions have not given the Court an explanation that, upon examination, stands up to scrutiny. I do not think that the Court should rubber stamp legislation that refers quite correctly to general principles that are eminently desirable, but – when more specific explanation is sought in order to enable the Court to perform its judicial function – reveals the level of confusion and inter-institutional incoherence that has emerged in this case.” (para 123, emphasis added)

*) Shakespeare, Macbeth, Act II Scene 3

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Hamlet, with the Prince disappearing: US Supreme Court in fleeting expletives case

Posted on April 29, 2009 | Filed Under fundamental rights

“The result is not simply Hamlet without the prince, but Hamlet with a prince who, in midplay and without explanation, just disappears.” Justice Breyer, dissenting from yesterday’s U.S. Supreme Court’s decision in the FCC v. Fox Case (full text here), heaps scorn on the FCC’s change of policy in monitoring broadcast indecency (see our previous posts here, here, here, here and here) . To Breyer, the FCC had not given any substantial reason for abandoning its previous policy which tolerated fleeting expletives, but just put forward “28 words (repeated in two opinions)”, which do “not explain the transformation of what the FCC had long thought an insurmountable obstacle into an open door.” But for the majority, Justice Scalia found that the agency’s reasons for expanding its enforcement activity were “entirely rational” and the policy change - “spurred by significant political pressure from Congress” - therefore was neither arbitrary nor capricious (the standard for judicial review under the US Administrative Procedure Act).

At first view, it is a patently absurd case. But then - as Justice Scalia, writing the opinion for the majority, reminds us - the US Supreme Court “is one of final review, ‘not of first view’”. And so, underlying the f- and s-words, there are some interesting remarks on judicial review of (indpendent) agency decisions. Justice Breyer, in his dissent, writes:

“I begin with applicable law. That law grants those in charge of independent administrative agencies broad authority to determine relevant policy. But it does not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences. Federal Communications Commissioners have fixed terms of office; they are not directly responsible to the voters; and they enjoy an independence expressly designed to insulate them, to a degree, from “‘the exercise of political oversight.’” […] That insulation helps to secure important governmental objectives, such as the constitutionally related objective of maintaining broadcast regulation that does not bend too readily before the political winds. But that agency’s comparative freedom from ballot-box control makes it all the more important that courts review its decision making to assure compliance with applicable provisions of the law—including law requiring that major policy decisions be based upon articulable reasons. …
[T]he FCC’s answer to the question, “Why change?” is, “We like the new policy better.” This kind of answer, might be perfectly satisfactory were it given by an elected official. But when given by an agency, in respect to a major change of an important policy where much more might be said, it is not sufficient.” [emphasis added]

Justice Scalia, apart from his usual slurs against those dissenting from his views (for instance he accuses Justice Breyer of “stacking the deck”), directly opposes Breyer:

“Not so. The independent agencies are sheltered not from politics but from the President, and it has often been observed that their freedom from presidential oversight (and protection) has simply been replaced by increased subservience to congressional direction. […] Indeed, the precise policy change at issue here was spurred by significant political pressure from Congress. Regardless, it is assuredly not “applicable law” that rulemaking by independent regulatory agencies is subject to heightened scrutiny. […] There is no reason to magnify the separation-of-powers dilemma posed by the Headless Fourth Branch, […] by letting Article III judges—like jackals stealing the lion’s kill—expropriate some of the power that Congress has wrested from the unitary Executive.”

But even as the Supreme Court remanded the case, one key issue remains open: the constitutionality of the FCC’s new policy under the First Amendment. As there was no lower court opinion on this question, the Supreme Court declined to address this issue:

“It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case.”

And in the light of the new U.S. Administration and the changes it brought/brings also at the FCC, there might be some hope for the broadcasters in Justice Breyer’s dissent, where he - in parentheses - points out that:

Of course, nothing in the Court’s decision today prevents the Commission from reconsidering its current policy in light of potential constitutional considerations or for other reasons.

In the meantime, expect the Supreme Court to address some other issues of utmost importance, such as the “nine-sixteenths of a second exposure of the breast of performer Janet Jackson”. As SCOTUSBLOG writes, the “wardrobe malfunction” has been “ready for the Supreme Court to act upon it since late February”.

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“not limited to the media”: ECHR and ECJ expanding press freedom to non(traditional)media

Posted on April 21, 2009 | Filed Under fundamental rights

Of course it might be a bit premature to draw far-reaching conclusions from just one judgment each of the European Court of Human Rights and of the European Court of Justice - nevertheless, I’d like to draw your attention to these judgments which seem to indicate a broader view of the beneficiaries of press freedom than we were previously accustomed to.

1. The more recent judgment comes from the ECHR in an Art 10 case concerning access to information. The case Társaság a Szabadságjogokért v. Hungary is notable primarily for the strong view the Court puts forward as regards access to state-held documents. The Hungarian Constitutional Court had denied to release a complaint made to him by a Member of the Hungarian Parliament requesting the constitutional scrutiny of some recent amendments to the Criminal Code. The Court found that the “Constitutional Court’s monopoly of information thus amounted to a form of censorship”, and concludes that “the interference with the applicant’s freedom of expression in the present case cannot be regarded as having been necessary in a democratic society.” It is a brief judgment well worth reading in full (see also the coverage in the ECHR-Blog, which alerted me to the case). But the point I want to stress here is that the ECHR explicitely states that the applicant, the Hungarian Civil Liberties Union, as an NGO is to be regarded as a “social watchdog” and its activities warrant similar Convention protection to that afforded to the press. Paragraph 27 of the judgment reads:

“In view of the interest protected by Article 10, the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information. For example, the latter activity is an essential preparatory step in journalism and is an inherent, protected part of press freedom (see Dammann v. Switzerland (no. 77551/01, § 52, 25 April 2006).  The function of the press includes the creation of forums for public debate. However, the realisation of this function is not limited to the media or professional journalists. In the present case, the preparation of the forum of public debate was conducted by a non-governmental organisation. The purpose of the applicant’s activities can therefore be said to have been an essential element of informed public debate. The Court has repeatedly recognised civil society’s important contribution to the discussion of public affairs (see, for example, Steel and Morris v. the United Kingdom (no. 68416/01, § 89, ECHR 2005-II). The applicant is an association involved in human rights litigation with various objectives, including the protection of freedom of information. It may therefore be characterised, like the press, as a social “watchdog” (see Riolo v. Italy, no. 42211/07, § 63, 17 July 2008; Vides Aizsardzības Klubs v. Latvia, no. 57829/00, § 42, 27 May 2004). In these circumstances, the Court is satisfied that its activities warrant similar Convention protection to that afforded to the press.” (emphasis added)

2. In a wholly different subject matter, the European Court of Justice (ECJ) also came to the conclusion that “journalistic activities … are not limited to media undertakings”. The Case C-73/07 Satakunnan Markkinapörssi and Satamedia concerned article 9 of the data protection directive, stating that “Member States shall provide for exemptions or derogations from the provisions of this Chapter, Chapter IV and Chapter VI for the processing of personal data carried out solely for journalistic purposes […] only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression.”

The company at the heart of the dispute collects public data from the Finnish tax authorities for the purposes of publishing extracts from those data; the published information comprises the names of approximately 1.2 million natural persons whose income exceeds certain thresholds “as well as the amount, to the nearest EUR 100, of their earned and unearned income and details relating to wealth tax levied on them.” These data are also transferred to a sister company, which distributes them by a text-messaging system. Data protection authorities wanted to prohibit this SMS-service.

The ECJ first stressed the necessity to interpret notions relating to press freedom broadly. Nr. 56 of the judgment reads:

“In order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary, first, to interpret notions relating to that freedom, such as journalism, broadly. Secondly, and in order to achieve a balance between the two fundamental rights, the protection of the fundamental right to privacy requires that the derogations and limitations in relation to the protection of data provided for in the chapters of the directive referred to above must apply only in so far as is strictly necessary.”

It then stated that the exemptions and derogations provided for in Article 9 of the directive apply not only to media undertakings but also to every person engaged in journalism and that the fact that the publication of data within the public domain is done for profit-making purposes does not, prima facie, preclude such publication being considered as an activity undertaken ‘solely for journalistic purposes’. And thirdly, the ECJ holds that the transport medium does not matter; Nr. 60 and 61  read: 

“60   Thirdly, account must be taken of the evolution and proliferation of methods of communication and the dissemination of information. As was mentioned by the Swedish Government in particular, the medium which is used to transmit the processed data, whether it be classic in nature, such as paper or radio waves, or electronic, such as the internet, is not determinative as to whether an activity is undertaken ‘solely for journalistic purposes’.

61     It follows from all of the above that activities such as those involved in the main proceedings, relating to data from documents which are in the public domain under national legislation, may be classified as ‘journalistic activities’ if their object is the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them. They are not limited to media undertakings and may be undertaken for profit-making purposes.”

3. Summing it up: ECJ and ECHR have clearly moved to grant traditional press freedoms not only to traditional media, but also to SMS-information services (and, if implicitely, bloggers!) and NGOs engaged in “the creation of forums for public debate”.

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ECHR: blanket ban on political tv advertising violates freedom of expression

Posted on December 12, 2008 | Filed Under fundamental rights

In a decision handed down yesterday, the European Court of Human Rights came to the conclusion that a blanket ban on paid political tv advertising violates Art 10 of the European Convention on Human Rights. The case, TV Vest As & Rogaland Pensjonistparti v. Norway, involved a small political party that had gained only 2.3 % of the votes in the last election. It found that the only way to get its message across to the electorate would be to pay for tv advertising, and so it placed spots on a regional tv program. The broadcaster was fined by the Media Authority (around 3.800 €) and the fine was upheld by the Supreme Court (with one dissenting opinion which is extensively quoted in the ECHR judgment).

The ECHR took note of a background paper on political advertising, prepared by EPRA (European Platform of Regulators) for an EPRA meeting in 2006. According to this paper, 13 European countries had a statutory ban on paid political advertising in broadcasting, in 10 such advertising was permitted, and in 11 there existed provisions for free airtime for political parties and candidates during election campaigns (five of these were among the 13 where paid political advertising was prohibited). The ECHR accepts that this absence of European consensus “speaks in favour of allowing a somewhat wider margin of appreciation than that normally accorded with respect to restrictions on political speech in relation to Article 10 of the Convention.” But then the Court said:

70.   In this regard, the Court notes that the rationale for the statutory prohibition of broadcasting of political advertising through television was, as stated by the Supreme Court, the assumption that allowing the use of such a form and medium of expression was likely to reduce the quality of political debate generally. In this way complex issues might easily be distorted and groups that were financially powerful would get greater opportunities for marketing their opinions than those that were not. … The Government pointed out that the ban had been limited to political advertising on television due to the powerful and pervasive impact of this type of medium. Moreover, the prohibition had contributed to limiting election campaigns costs, to reducing participants’ donor dependence and ensuring a level playing field in elections. It was aimed at supporting the integrity of democratic processes, to obtain a fair framework for political and public debate and to avoid that those who were well endowed obtained an undesirable advantage through the possibility of using the most potent and pervasive medium. Also, it helped to preserve the political impartiality of television broadcasting. These are undoubtedly relevant reasons (see VgT § 73).
71.  However, the Court is not convinced that these objectives were sufficient to justify the interference complained of.
72.  In the first place, there is nothing to suggest that the Pensioners Party fell within the category of parties or groups that were the primary targets of the disputed prohibition, namely those which because of their relative financial strength might have obtained an unfair advantage over those less endowed by being able to spend most on broadcast advertising (see VgT, § 75).
73.  On the contrary, while the Pensioners Party belonged to a category which the ban in principle was intended to protect, the Court … is not persuaded that the ban had the desired effect. In contrast to the major political parties, which were given a large amount of attention in the edited television coverage, the Pensioners Party was hardly mentioned. Therefore, paid advertising on television became the only way for the Pensioners Party to get its message across to the public through that type of medium. By being denied this possibility under the law, the Pensioners Party’s position was at a disadvantage, compared to that of major parties which had obtained edited broadcasting coverage that could not be offset by the possibility available to it to use other but less potent media.
74.  The Court further notes that it has not been contended that the specific advertising at issue contained elements that were capable of lowering the quality of political debate (see VgT, § 76).
75.  Moreover, as mentioned above, it does not appear that the advertising could give rise to sensitivities as to divisiveness or offensiveness making a relaxation of the prohibition difficult. In this regard, as already stated, the case under consideration is distinguishable from that of Murphy, where it was such sensitivities that led the Court to accept that the filtering by a public authority, on a case by case basis, of unacceptable or excessive religious advertisings would be difficult to apply fairly, objectively and coherently and that a blanket ban would generate less discomfort (§§ 76-77). …
77.  The view expounded by the respondent Government, supported by the third party intervening Governments, that there was no viable alternative to a blanket ban must therefore be rejected.
78.   In sum, there was not, in the Court’s view, a reasonable relationship of proportionality between the legitimate aim pursued by the prohibition on political advertising and the means deployed to achieve that aim. The restriction which the prohibition and the imposition of the fine entailed on the applicants’ exercise of their freedom of expression cannot therefore be regarded as having been necessary in a democratic society, within the meaning of paragraph 2 of Article 10 for the protection the rights of others, notwithstanding the margin of appreciation available to the national authorities. Accordingly, there has been a violation of Article 10 of the Convention.”

Update (14 December 2008): Daithí Mac Síthigh at LexFerenda has an excellent post on this judgment, pointing also to the recent decisions by Ofcom (here and here) and the House of Lords (here), as well as highlighting the Irish background and linking to further blogs  dealing with the judgment (OfcomWatch, MediaPal@LSE, Adrian Monck).

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Hearing C-301/06 Ireland v Council - annulment of data retention directive?

Posted on July 2, 2008 | Filed Under fundamental rights

Yesterday the European Court of Justice held the hearing in a case brought forward by the Republic of Ireland (C-301/06) concerning the annulment of the highly controversial data-retention directive (2006/24/EC). Ireland’s claim is not based on concerns about data protection - co-applicant Slovakia, however, also argued that the directive was a violation of Article 8 ECHR* - but questions the choice of Article 95 as the directive’s legal basis. Since

the sole or, alternatively, the main or predominant purpose of the Directive is to facilitate the investigation, detection and prosecution of serious crime, including terrorism

and not the approximation of national laws for the benefit of the internal market, in the applicants’ view the only permissible legal base for the measures contained in the directive is Title VI of the Treaty on European Union, in particular Articles 30, 31(1)(c) and 34(2)(b).
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ECHR on denial of broadcasting licence: just “no” is not enough

Posted on June 18, 2008 | Filed Under fundamental rights

_jauerling.jpgJulius Caesar (in Shakespeare’s play), when pressed by Decius Brutus to “let me know some cause”, was in a position to say: “The cause is in my will … that is enough to satisfy the senate”. But times have changed, and nowadays a broadcasting regulator should give some more reasons on why a licence is denied to an applicant. However, when reading the judgment by the European Court of Human Rights in the Case of Meltex v. Armenia, Appl. no. 32283/04, handed down on 17 June 2008, I couldn’t help but think of Caesar’s words. In presenting the circumstances of the case, the ECHR reports of five instances (if I counted correctly), where the applicant company lost in tenders for broadcasting frequencies, receiving the information that it “was not selected as the best organisation in the call for tenders” - no further reasons. Even in judicial review it did not get further, with the courts stating that there was no need for further reasons: “there can be no uncertainty for the other participants in the tender process as to whether their bid has or has not been refused, since they are told who the winner is and, consequently, that they have not won.” What else would you want to know?!

The applicant company had been active in broadcasting for some time in Armenia before, and it obviously had a professional track record, so there is some lingering suspicion that the denial of a licence might have had political reasons. The Court reports that the applicant company had refused to broadcast only pro-Government material and it had been informed that “the broadcast frequencies were granted by the State in order to defend and further State interests rather than criticise State authorities.”

The judgment of the ECHR does not need to go into these questions of a possible political background: the mere fact that there were no reasons given for the denial of the licence constitutes a violation of Article 10 of the Convention:

“The Court considers that a licensing procedure whereby the licensing authority gives no reasons for its decisions does not provide adequate protection against arbitrary interferences by a public authority with the fundamental right to freedom of expression.”

This echoes the judgment of 11 October 2007 in the Case of Glas Nadezhda EOOD and Elenkov v. Bulgaria, appl. no. 14134/02. In both cases the Court makes an explicit reference to the Recommendation Rec(2000)23 on the independence and functions of regulatory authorities, in the Case of Meltex v. Armenia also to the recent Committee of Ministers declaration on the independence and function of regulatory authorities of 26 March 2008.

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RFID - In time we hate that which we often fear*

Posted on March 10, 2008 | Filed Under communication technologies, fundamental rights

rfid.jpgThe European Commission has recently contributed to the public debate on the opportunities and challenges of Radio Frequency Identification (RFID) technology with a Draft Recommendation on the implementation of privacy, data protection and information security principles in applications supported by RFID.

Despite the general perception Radio Frequency Technology is nothing particularly new. Technologies related to RFID such as the long-range transponder systems of “identification, friend or foe” (IFF) for aircraft were already explored in the 1950s. The reason for todays hype around RFID (probably started by 2006 CEBIT) is the technology’s rapid movement from the reserach lab to mass application during the last years.

The industry cherishes great expectations as it has discovered the potential financial benefits of the use of RFID tags. It claimes that from today’s simple radio chips storing product codes (including item number, production details like date, manufacturer and so on) which are already used in logistics and could replace the barcode at retail, it is only a small step to tomorrow’s ‘Internet of Things’, creating many opportunities not for business and society as well.

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Chance hit or perfect shot? - ECHR on coercive detention

Posted on November 28, 2007 | Filed Under fundamental rights

koen_voskuil_nu.jpg In his recent judgement of November 22. (case of Voskuil v. The Netherlands) the ECHR had to decide whether to interfere with the rights granted under Art. 10 of the Convention through the coercive detention of a journalist was necessary in a democratic society. The alledged dutch journalist had questioned the lawfulness of the procedure conducted by the Amsterdam police in a case of arms trafficking. The police force had stated that they had coincidently found an arsenal of weapons when the caretaker of a building had called them because of a water leak in an abandonded flat. In his article for the daily newspaper Sp!ts titled “Chance hit or perfect shot?” the journalist had anonymously quoted a policeman who in respect of the flooding said:

“That is what we made out of it. Sometimes you just need a breakthrough in an investigation.“

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public-figures doctrine refined

Posted on October 25, 2007 | Filed Under fundamental rights

trial_le_pen2.jpgIn his recent judgement Lindon, Otchakovsky-Laurens und July gegen Frankreich (Appl. nos. 21279/02 and 36448/02) the ECHR has affirmed its Public-figures doctrine which says that the limits of acceptable criticism are wider as regards a politician or a political party as such, than as regards a private individual.
However, the court also introduced some alterations by refined the doctrine helding that:

“regardless of the forcefulness of political struggles, it is legitimate to try to ensure that they abide by a minimum degree of moderation and propriety, especially as the reputation of a politician, even a controversial one, must benefit from the protection afforded by the Convention.“

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Access to state-held information – a fundamental right ?

Posted on October 16, 2007 | Filed Under fundamental rights

top-secret.jpgAn Austrian lawyer has sought access to a document hold by the Austrian Federal Ministry for Internal Affairs – to the so called handbook on the Niederlassungs- und Aufenthaltsgesetz. It’s a document which contains guidelines for the authorities regarding the application of the Law on Residence and Settlement in Austria. The Ministry refused to provide the lawyer with the requested document. Even when asked by the Austrian Parliament the Ministry refused to publish the document. It argued that it is not obliged to do so (the “Standard” reported). Is that right?

Art 20 § 4 of the Austrian Federal Constitutional Law states that public bodies shall impart information about matters pertaining to their sphere of competence in so far as this does not conflict with a legal obligation to maintain secrecy. But as Art 255 EC Treaty (which regulates the access to European documents) this provision does not formulate a right for a citizen or a person; it’s just laid down as a general principle. Therefore, public authorities are not obliged to impart the requested information on grounds of Art 20 § 4.

Until recently, a right of access to state-held information was neither granted on grounds of Art 10 (freedom of interpretation). The Court of Human Rights repeatedly hold that the right to freedom to receive information as laid down in Art 10 ECHR merely “[…] prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart on him,” and that it „[…] cannot be construed as imposing on the State […] positive obligations to disclose to the public any secret documents or information”.

With the Sdruzeni Jihoceske Matky case from 10. July 2006 the Straßbourg Court seems to strike a new path. For the first time it applied Article 10 ECHR in an access to public documents case. The case concerned a refusal to give an ecologist Non-Governmental organization access to documents and plans regarding a nuclear power station. Although the Court decided that there had not been a breach of Article 10, it explicitly recognized that the refusal by the Czech authorities was an interference with the right to receive information, because the requested documents were related to a matter of public interest.

From this it follows that States are in principal obliged to grant access to documents which are of public concern or an ongoing political debate. It can only refuse the access within the scope of the conditions set forth in Article 10 § 2 of the Convention which implies that such a refusal must be prescribed by law, be based on a legitimate aim and especially must be necessary in a democratic society.

Whether the Austrian Federal Ministry for Internal Affairs Ministry would have been able to justify its refusal under these criteria when brought before the ECHR is questionable. I doubt. Well anyway, due to an anonym sender the handbook appeared and its quite interesting to read.

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