“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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  1. cearta.ie » Trouble in the Blog O’Sphere on February 3rd, 2010 8:04 pm

    […] of the Irish Constitution and of the European Convention on Human Rights. There are, in particular, emerging arguments that various European Courts have clearly moved to grant traditional press freedoms not only to […]

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