Information Note on the Court’s case-law 208

June 2017

Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC] - 931/13

Judgment 27.6.2017 [GC]

Article 10

Article 10-1

Freedom to impart information

Order restraining mass publication of tax information: no violation

Facts – The first applicant company (Satakunnan Markkinapörssi Oy) published a newspaper providing information on the taxable income and assets of Finnish taxpayers. The information was, by law, public.* The second applicant company (Satamedia Oy) offered a service supplying taxation information by SMS text message.

In April 2003 the Data Protection Ombudsman requested the Data Protection Board to restrain the applicant companies from processing taxation data in the manner and to the extent they had in 2002 and from passing such data to an SMS-service. The Data Protection Board dismissed the Ombudsman’s request on the grounds that the applicant companies were engaged in journalism and so were entitled to a derogation under section 2(5) of the Personal Data Act. The case subsequently came before the Supreme Administrative Court, which in February 2007 sought a preliminary ruling from the Court of Justice of the European Union (CJEU) on the interpretation of the EU Data Protection Directive.** In its judgment of 16 December 2008*** the CJEU ruled that activities relating to data from documents which were in the public domain under national legislation could be classified as “journalistic activities” if their object was to disclose to the public information, opinions or ideas, irrespective of the medium used to transmit them. In September 2009 the Supreme Administrative Court directed the Data Protection Board to forbid the processing of taxation data in the manner and to the extent carried out by the applicant companies in 2002. Noting that the CJEU had found that the decisive factor was to assess whether a publication contributed to a public debate or was solely intended to satisfy the curiosity of readers, the Supreme Administrative Court concluded that the publication of the whole database collected for journalistic purposes and the transmission of the information to the SMS service could not be regarded as journalistic activity.

In the Convention proceedings the applicant companies complained, among other matters, of a violation of Article 10 of the Convention. In a judgment of 21 July 2015 a Chamber of the Court held, by six votes to one, that there had been no violation of that provision. On 14 December 2015 the case was referred to the Grand Chamber at the applicants’ request.

Law – Article 10

(a) Preliminary issue – whether the taxpayers had a competing right to privacy under Article 8 – The fact that information was already in the public domain did not necessarily remove the protection of Article 8. Where there had been compilation of data on a particular individual, processing or use of personal data or publication of the material concerned in a manner or degree beyond that normally foreseeable, private-life considerations arose. In the instant case, the data collected, processed and published by the applicant companies in the newspaper had provided details of taxable earned and unearned income and taxable net assets and so clearly concerned the private life of the individuals concerned, notwithstanding the fact that, pursuant to Finnish law, the data could be accessed by the public.

(b) Interference, prescribed by law and legitimate aim – The Data Protection Board’s decision to forbid the processing of the taxation data in the manner complained of, as upheld by the national courts, entailed an interference with the applicant companies’ right to impart information as guaranteed by Article 10. The interference was prescribed by law – the terms of the relevant data-protection legislation and the nature and scope of the journalistic derogation on which the applicant companies sought to rely were applied in a sufficiently foreseeable manner following the interpretative guidance provided to the Supreme Administrative Court by the CJEU and, as media professionals, the applicant companies should have been aware that the mass collection of data and its wholesale dissemination might not be considered as processing “solely” for journalistic purposes – and the interference pursued the legitimate aim of protecting the reputation or rights of others.

(c) Necessity in a democratic society – The Court examined the criteria it had identified in its previous case-law as being relevant when balancing the competing rights to private life under Article 8 of the Convention and to freedom of expression under Article 10.

(i) Contribution to a debate of public interest : Underpinning the Finnish legislative policy of rendering taxation data publicly accessible was the need to ensure that the public could monitor the activities of government authorities. Nevertheless, public access to taxation data, subject to clear rules and procedures, and the general transparency of the Finnish taxation system did not mean that the impugned publication itself contributed to a debate of public interest. Taking the publication as a whole and in context the Court, like the Supreme Administrative Court, was not persuaded that publication of taxation data in the manner and to the extent done by the applicant companies (the raw data was published as catalogues en masse , almost verbatim) had contributed to such a debate or indeed that its principal purpose was to do so.

(ii) Subject of the publication – Some 1,200,000 natural persons were the subject of the publication. They were all taxpayers but only a very few were individuals with a high net income, public figures or well-known personalities within the meaning of the Court’s case-law. The majority of the persons whose data were listed in the newspaper belonged to low-income groups.

(iii) Manner of obtaining the information and its veracity – The accuracy of the information published was never in dispute and the data were not obtained by illicit means. However, it was clear that the applicant companies, who had cancelled their request for data from the National Board of Taxation and instead hired people to collect taxation data manually at the local tax offices, had a policy of circumventing normal channels and, accordingly, the checks and balances established by the domestic authorities to regulate access and dissemination.

(iv) Content, form and consequences of publication – Although journalists enjoy the freedom to choose, from the news items that come to their attention, which they will deal with and how, that freedom is not devoid of responsibilities. Even though the taxation data in question in the applicant companies’ case were publicly accessible in Finland, they could only be consulted at the local tax offices and consultation was subject to clear conditions. Journalists could receive taxation data in digital format, but only a certain amount of data could be retrieved. Journalists had to specify that the information was requested for journalistic purposes and that it would not be published in the form of a list. Therefore, while the information relating to individuals was publicly accessible, specific rules and safeguards governed its accessibility. For the Court, the fact that the data in question were accessible to the public under the domestic law did not necessarily mean that they could be published to an unlimited extent. Publishing the data in a newspaper, and further disseminating that data via an SMS service, had rendered them accessible in a manner and to an extent that was not intended by the legislator. The safeguards in national law were built in precisely because of the public accessibility of personal taxation data, the nature and purpose of data-protection legislation and the accompanying journalistic derogation. Under these circumstances, the authorities of the respondent State enjoyed a wide margin of appreciation in deciding how to strike a fair balance between the respective rights under Articles 8 and 10.

When weighing those rights, the domestic courts had sought to strike a balance between freedom of expression and the right to privacy embodied in data-protection legislation. Applying the derogation in section 2(5) of the Personal Data Act and the public-interest test to the impugned interference, they and, in particular, the Supreme Administrative Court, had analysed the relevant Convention and CJEU case-law and carefully applied the case-law of the Court to the facts of the instant case.

(v) Sanction – The applicant companies had not been prohibited from publishing taxation data or from continuing to publish the newspaper provided they did so in a manner consistent with Finnish and EU rules on data protection and access to information. The fact that, in practice, the limitations imposed on the quantity of the information to be published may have rendered some of their business activities less profitable was not, as such, a sanction within the meaning of the Court’s case-law.

***

In conclusion, the competent domestic authorities and, in particular, the Supreme Administrative Court had given due consideration to the principles and criteria laid down by the Court’s case-law for balancing the right to respect for private life and the right to freedom of expression. The Supreme Administrative Court had attached particular weight to its finding that the publication of the taxation data in the manner and to the extent described did not contribute to a debate of public interest and that the applicants could not in substance claim that it had been done solely for a journalistic purpose within the meaning of domestic and EU law. The reasons relied upon by the domestic courts were thus both relevant and sufficient to show that the interference complained of had been “necessary in a democratic society” and that the authorities of the respondent State had acted within their margin of appreciation in striking a fair balance between the competing interests at stake.

Conclusion : no violation (fifteen votes to two).

The Grand Chamber also held by fifteen votes to two that there been a violation of Article 6 § 1 of the Convention in respect of the length of the proceedings before the domestic courts.

* By virtue of section 5 of the Act on the Public Disclosure and Confidentiality of Tax Information.

** Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

*** Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy , C-73/07, judgment of 16 December 2008 .

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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