Communicated on 25 August 2015

FIRST SECTION

Application no. 58729/11 Tamás BODOKY against Hungary lodged on 13 September 2011

STATEMENT OF FACTS

The applicant, Mr Tamás Bodoky , is a Hungarian national, who was born in 1971 and lives in Budapest . He is represented before the Court by Mr L. Baltay , a lawyer practising in Gyál .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant is a journalist. At the material time he investigated into an investment in a motor racing circuit close to Lake Balaton in Hungary. At the time, this investment was fiercely debated in the media. He lodged a request with the State-owned Hungarian Development Bank Ltd, under sections 19 and 20 of Act no. LXIII of 1992 on the Protection of Personal Data and the Publicity of Data of Public Interest (“the Data Act”), seeking access to the impact study on the investment, conducted by a private auditing company.

His request was refused by the Bank on 3 February 2010 on the ground that it concerned information falling under bank secrecy.

On 17 February 2010 the applicant lodged a civil action under section 21 of Act no. LXIII of 1992 with the Budapest Regional Court. He submitted that Government Resolution no. 1179/2009 (X.26.) had earmarked, for the purposes of the investment, a budgetar y subsidy in the amount of 74.7 million Hungarian forints (approximately 240,000 euros) and instructed the Bank to grant a loan to a private limited liability company responsible for the construction of the racing circuit. He argued that the granting of a State subsidy and loan was a matter of public interest within the meaning of section 19(1) of the Data Act and thus constituted public data.

While the civil proceedings were pending, the limited liability company in question made the impact study partly accessible to the public on the Internet; nonetheless, part of the information contained in it was masked out. In particular, point 3.2 of the report contained a description of the various contracts that were to be concluded for the implementation of the project, out of which point 3.2.6 on the option contract was masked out. Page 54 contained the names – masked out – of the owners of the plots of land where the investment was to be materialised. A footnote on page 57 contained the name of one of the business partners was made illegible and so was, on page 60, the timeline of the project. Masked-out sections on pages 77 and 88 contained information on the business strategies of the contracting partners, and unreadable information in the tables on pages 88 and 89 related to service charges. A table on page 90, masked out, contained the planned salary of employees.

By a judgment of 22 April 2010 the Regional Court ordered the respondent to release the requested study within 15 days, with the proviso that certain information concerning personal data and the business strategies on pages 54, 57 and 80 could remain unreadable and undisclosed. As to the remainder of the masked-out texts, the court concluded that they either explicitly constituted public information or did not fall under business secrecy.

The respondent Bank appealed, arguing in essence that the requested data constituted bank secrecy. On 11 November 2010 the Budapest Court of Appeal overturned the first-instance judgment and dismissed the applicant ’ s action. According to the court ’ s reasoning, the study constituted a preparatory document for a decision by a public-sector body within the meaning of section 19/A (2) of the Data Act and, once the decision had been taken, its disclosure could only be refused if it negatively influenced the lawful and independent functioning of the public-sector body. Since the requested data concerned information about the ownership, business contacts and personal details of the Bank ’ s clients, their disclosure would prejudice the respondent Bank ’ s independent decision-making and functioning. Thus, the maintenance of bank secrecy was a legitimate aim pursued by restricting the applicant ’ s constitutional right of access to public information.

The applicant lodged a petition for review with the Supreme Court maintaining that respect for bank secrecy was not a legitimate exception from the accessibility of public information.

In its judgment of 13 April 2011 the Supreme Court upheld the second-instance judgment on its merits, finding nonetheless that the legal basis for the restriction was not section 19/A (2) of the Data Act, but section 19 (3) point d) of the same, read in conjunction with section 55 (1) of Act no. CXII of 1996 on Credit Institutions and Financial Enterprises. It held that, in the instant case, it was irrelevant that the study had been a preparatory document relating to the decision-making of a public service body. The requested information concerned the personal data as well as the business, financial and other secrets of the Bank ’ s clients. Thus it fell under bank secrecy, and its disclosure would have undermined confidence in the respondent Bank and, as a consequence, put its functioning at risk.

B. Relevant domestic law

The Data Act, as in force at the material time, provided as follows:

Section 19

“(1) Organs and persons exercising S tate ... duties shall secure the exact and rapid inform ing of the public about matters falling within their scope of duties, in particular State and local government budget and its execution, the management of State and local government property, use of public funds and any agreement in this respect, and any special or exclusive right granted to market actors, private organisations or persons.

...

(3) The organs mentioned in paragraph (1) shall grant access to the data of public interest processed by them, except for thos e data which are classified as S tate or service secret s by organs authorised to do so under an Act [of Parliament] , classified data under a concluded international agreement , or data of public interest the publicity of which is restrict ed by an Act in the interest of:

a) national defence,

b) national security,

c) criminal investigation and crime prevention,

d) financial or foreign exchange State-policy,

e) international relations and relations with international organisations,

f) judicial and administrative proceedings. ”

Act no. CXII of 1996 on Credit Institutions and Financial Enterprises provides as follows:

Section 55

“(1) Persons acquiring any business or bank secrets must keep them confidential without any time limitation.”

COMPLAINT

The applicant complains that the withholding the information sought, under the pretext of bank secrecy, infringed his rights under Article 10 of the Convention, in that he could not exercise his role as an investigative journalist to inform the public of a matter of general interest.

QUESTIONS TO THE PARTIES

1. Is the applicant ’ s claim to have access to the information in question covered by the right to freedom of expression, protected by Article 10 of the Convention (see Társaság a Szabadságjogokért v. Hungary , no. 37374/05, §§ 35-36, 14 April 2009; and Leander v. Sweden , 26 March 1987, § 74, Series A no. 116)?

2. If so, has there been an interference with his right to freedom of expression within the meaning of this provision? In the alternative, can it be argued that the securing of access to information represents a positive obligation on the State ’ s side under Article 10 of the Convention, which obligation was not respected?

3. If the answers to the above questions are in the affirmative, was the interference / non-respect for positive obligation justified in terms of Article 10 § 2?

4. In the event that the disputed denial of access should be viewed as an interference with a right protected by paragraph 1 of Article 10, was that interference prescribed by law ? Does bank secrecy constitute a legitimate exception to the rights provided in the Data Act?

5. Was the interference / non-respect for the positive obligations justified in terms of Article 10 § 2 of the Convention? In particular, to what extent are the duties and responsibilities inherent in the applicant ’ s role as a journalist relevant to his claim and the State ’ s margin of appreciation in this field? Did the domestic authorities strike a fair balance between the interest of the public in the disclosure of the information sought and respondent ’ s interest in keeping its clients ’ data confidential ?