FOURTH SECTION

Application no. 931/13 SATAKUNNAN MARKKINAPÖRSSI OY and SATAMEDIA OY against Finland lodged on 18 December 2012

STATEMENT OF FACTS

The applicant companies , Satakunnan Markkinapörssi Oy and Satamedia Oy , are F innish limited liability companies , wh ich have their seat in Kokemäki . They are represented before the Court by Mr Pekka Vainio, a lawyer practising in Turku .

A. The circumstances of the case

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

The first applicant company Satakunnan Markkinapörssi Oy has been publishing Veropörssi magazine since 1994. The magazine publishes yearly information about natural persons ’ taxable income and assets. This information is public according to Finnish law. Several other publications and media companies also publish such information. The editor-in-chief of the magazine lodged an application with the Court in 2010 ( Anttila v. Finland , no. 16248/10).

In 200 2 t he magazine appeared 17 times and each issue concentrated on a certain geographical area of the country. Data on 1.2 million persons ’ taxable income and assets w as published, which constituted at the time a third of all taxable persons in Finland. The magazine also published tax ‑ related articles and announcements.

The first applicant Satakunnan Markkinapörssi Oy ha s worked in cooperation with the second applicant Satamedia Oy . The companies are owned by the same persons. I n 2003 the second applicant company , together with a telephone operator, started an SMS-service. By sending a person ’ s name to a service number, taxation information concerning that person could be obtained if it information was available in the database. The database was created using data already published in the magazine. Since 2006 the second applicant company has also been publishing Veropörssi magazine.

On an unspecified date the Data Protection Ombudsman ( tietosuojavaltuutettu , dataombudsmannen ) contacted the applicant companies and advised them to stop publishing the taxation data in the manner and to the extent that had been the case in 2002. The companies declined because they felt that this request violated their freedom of expression.

By letter dated 10 April 2003 the Data Protection Ombudsman requested the Data Protection Board ( tietosuojalautakunta , datasekretessnämnden ) to order that the applicant companies be forbidden to process taxation data in the manner and to the extent that had been the case in 2002 and to pass such data to an SMS-service. He claimed that, under the Personal Data Act, the companies had no right to establish such personal data registers and that the derogation provided by the Act concerning journalism did not apply to the present case. The collecting of taxation information and the passing of such information to third parties was not journalism but processing of personal data which the applicant companies had had no right to do.

On 7 January 2004 the Data Protection Board dismissed the request of the Data Protection Ombudsman. It found that the derogation provided by the Personal Data Act concerning journalism applied to the present case. As concerned the SMS-service , the data used in the service had already been published in Veropörssi magazine and the Act did not therefore apply to it.

By letter dated 12 February 2004 the Data Protection Ombudsman appealed to the Helsinki Administrative Court ( hallinto-oikeus , förvaltningsdomstolen ), reiterating his request that the applicant companies be forbidden to process taxation information in the manner and to the extent that had been the case in 2002 and to pass such data to the SMS-service.

On 29 September 2005 the Administrative Court rejected the appeal. It found that the derogation provided by the Personal Data Act concerning journalism, which had its origins in Directive 95/46/EC, should not be interpreted too strictly as it would then favour protection of privacy over freedom of expression. The court considered that Veropörssi magazine had a journalistic purpose and that it was also in the public interest to publish such data. The court emphasised, in particular, that the published data w as public. The derogation provided by the Personal Data Act concerning journalism thus applied to the present case. As concerned the SMS-service, the court agreed with the Data Protection Board that, as the information had already been published in the magazine, the Act did not apply to it.

By letter dated 26 October 2005 the Data Protection Ombudsman appealed further to the Supreme Administrative Court ( korkein hallinto - oikeus , högsta förvaltningsdomsto len ), reiterating the grounds of appeal already presented before the Administrative Court.

On 8 February 2007 the Supreme Administrative Court decided to request a preliminary ruling from the European Court of Justice on the interpretation of Directive 95/46/EC.

On 16 December 2008 the European Court of Justice, sitting in a Grand Chamber composition, gave its judgment. It found first of all that the activities in question constituted “processing of personal data” to which the Directive applied. Moreover, activities involving the processing of personal data such as those relating to personal data files which contained solely, and in unaltered form, material that had already been published in the media, also fell within the scope of the Directive. In order to take account of the importance of the right to freedom of expression in every democratic society , it was necessary to interpret notions relating to that freedom , such as journalism , broadly. However , in order to achieve a balance between the two fundamental rights , the protection of the fundamental right to privacy required that the derogations and limitations in relation to the protection of data provided for in the Directive had to apply only in so far as was strictly necessary. In conclusion , activities such as those involved in the domestic proceedings , 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 which was used to transmit them. They were not limited to media undertakings and could be undertaken for profit ‑ making purposes.

On 23 September 2009 the Supreme Administrative Court quashed the previous decisions and referred the case back to the Data Protection Board . It requested the Board to forbid the processing of taxation data in the manner and to the extent carried out in 2002. The court noted first that the term “journalism” was not defined in Directive 95/46/EC but that, according to the European Court of Justice, it was to be interpreted broadly and derogations were to be kept only to what was strictly necessary. When balancing the right to freedom of expression against the right to privacy , the European Court of Human Rights 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 court found that the publication of the whole data base collected for journalistic purposes could not be regarded as journalistic activity. The public interest did not require such publication of personal data to the extent that had been seen in the present case , in particular as the derogation in the Personal Data Act was to be interpreted strictly. The same applied also to the SMS-service.

The SMS-service was shut down after the decision of the Supreme Administrative Court was served on the applicant companies . The magazine continued publishing taxation data in autumn 2009 when its content wa s only one fifth of the previous content. Since then the magazine has not appeared.

On 26 November 2009 the Data Protection Board forbade the first applicant compan y t o process taxation data in the manner and to the extent that had been the case in 2002 and to forward this information to an SMS ‑ service. The second applicant company was forbidden to collect, save or forward to an SMS-service any information received from the first applicant company ’ s registers and published in Veropörssi magazine.

By letter dated 9 February 2010 t he applicant companies appealed against th e decision of the Data Protection Board to the Helsinki Administrative Court which transferred the case to the Turku Administrative Court. They complained that the decision violated the prohibition of censorship guaranteed by the Constitution as well as their freedom of expression. The Finnish Constitution provided better protection than the international human rights treaties as the latter did not prohibit censorship fully. According to the domestic law, it was not possible to prevent publication of information on the basis of the amount of information to be published or of the means used for its publication. Nor was it possible to use “public interest” as a criterion for preventing publication when preventive restriction of freedom of expression was concerned. Accepting that would mean that the authorities would be able to prevent publication if they thought that the publication did not promote discussion of a topic of public interest.

On 28 October 2010 the Turku Administrative Court rejected the applicant companies ’ appeal . It found that, as far as the matter had been finally decided by the Supreme Administrative Court ’ s in its decision of 23 September 2009, it could not take a stand on the issue. In the latter decision the Supreme Administrative Court had stated that the case was not about the public nature of the taxation documents, nor about the right to publish such information. As the court was now examining only the decision rendered by the Data Protection Board which was issued as a result of the Supreme Administrative Court ’ s decision of 23 September 2009, it could not examine the issues which the Supreme Administrative Court had excluded from the scope of its decision. As the Board ’ s decision corresponded to the content of the Supreme Administrative Court ’ s decision, there was no reason to change it.

By letter dated 29 November 2010 t he applicant companies appealed further to the Supreme Administrative Court, reiterating the grounds of appeal already presented before the Administrative Court. They noted in particular that the decision issued by the Data Protection Board had prohibited the processing of taxation information for publishing purposes as well as requiring that the internal registers of the first applicant company be protected in a manner required by the Personal Data Act. In practice the companies were prevented from collecting information for publishing purposes, which meant that there was an interdiction to publish such information. The companies noted that the Finnish Constitution also prohibited indirect preventive censorship.

On 18 June 2012 the Supreme Administrative Court upheld the judgment of the Administrative Court. It found that the case was not about the right to publish taxation information as such, nor about preventive censorship. On these grounds and the grounds mentioned in the Administrative Court ’ s reasoning, the court found that there was no reason to change the latter ’ s decision.

B. Relevant domestic law

Constitutional provisions

Article 10 of the Constitution of Finland ( Suomen perustuslaki , Finlands grundlag , Act no. 731/1999) guarantees everyone ’ s right to private life. According to it:

“Everyone ’ s private life, honour and the sanctity of the home are guaranteed. More detailed provisions on the protection of personal data are laid down by an Act.

The secrecy of correspondence, telephony and other confidential communications is inviolable.

Measures encroaching on the sanctity of the home, and which are necessary for the purpose of guaranteeing basic rights and liberties or for the investigation of crime, may be laid down by an Act. In addition, provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home, at trials and security checks, as well as during the deprivation of liberty may be laid down by an Act.”

Article 12 of the Constitution concerns the freedom of expression and provides the following:

“Everyone has the freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of the freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act.”

Provisions relating to freedom of expression

According to section 1 of the Act on the Exercise of Freedom of Expression in Mass Media ( laki sananvapauden käyttämisestä joukkoviestinnässä , lagen om yttrandefrihet i masskommunikation , Act no. 460/2003 ), the Act contains more detailed provisions on the exercise, in the media, of the freedom of expression enshrined in the Constitution. In the application of the Act, interference with the activities of the media shall be legitimate only in so far as it is unavoidable, taking due note of the importance of the freedom of expression in a democracy subject to the rule of law.

Provisions relating to the protection of private life

Chapter 24, section 8, of the Penal Code ( rikoslaki , strafflagen as amended by Act no. 531/2000) reads as follows:

“ Dissemination of information violating private life :

A person who unlawfully (1) through the use of the mass media, or (2) in another manner publicly spreads information, an insinuation or an image of the private life of another person, such that the act is likely to cause that person damage or suffering, or subject that person to contempt, shall be convicted of injuring personal reputation and sentenced to a fine or a maximum term of two years ’ imprisonment.

The spreading of information, an insinuation or an image of the private life of a person in politics, business, public office or a public position, or in a comparable position, shall not constitute injury to personal reputation, if it may affect the evaluation of that person ’ s activities in the position in question and if it is necessary for the purposes of dealing with a matter of importance to society.”

Personal Data Act

According to sections 1 and 2 of the Personal Data Act ( henkilötietolaki , p ersonuppgiftslagen , Act no. 523/1999 , as in force at the relevant time) , the objectives of this Act are to implement , in the processing of personal data , the protection of private life and the other basic rights which safeguard the right to privacy , as well as to promote the development of and compliance with good processing practice.

The Act applies to the automatic processing of personal data. It applies also to other processing of personal data where the data constitute s or is intended to constitute a personal data file or a part thereof.

The Act does not apply to the processing of personal data by a private individual for purely personal purposes or for comparable ordinary and private purposes. It does not apply either to personal data files containing, solely and in unaltered form, data that ha s been published by the media. Several exceptions also apply to the processing of personal data for purposes of journalism or artistic or literary expression.

Public disclosure of tax information

According to section 5 of the Act on the Public Disclosure and Confidentiality of Tax Information ( laki verotustietojen julkisuudesta ja salassapidosta , lagen om offentlighet och sekretess i fråga om beskattningsuppgifter , Act no. 1346/1999), in annual taxation, the information on a taxpayer ’ s name, year of birth and municipality of domicile is public. In addition, the following information is public:

“(1) earned income taxable in State taxation;

(2) capital income and property taxable in State taxation;

(3) income taxable in municipal taxation;

(4) income and net wealth tax, municipal tax and the total amount of taxes and charges imposed;

(5) the total amount of withholding tax;

(6) the amount to be debited / the amount to be refunded in the final assessment for the tax year.”

C. Relevant European Union law

Article 9 of 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 provides the following:

“ Processing of personal data and freedom of expression

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 or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression. ”

D. Council of Europe texts

The Council of Europe Convention of 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data (“the Data Protection Convention”), which entered into force in respect of Finland on 1 April 1992, defines “personal data” as any information relating to an identified or identifiable individual. The Convention provides inter alia :

“Article 5 – Quality of data

Personal data undergoing automatic processing shall be:

a . obtained and processed fairly and lawfully;

b . stored for specified and legitimate purposes and not used in a way incompatible with those purposes;

c . adequate, relevant and not excessive in relation to the purposes for which they are stored;

....”

COMPLAINTS

The applicant companies complain under Article 6 of the Convention about the length of the administrative proceedings which lasted for more than eight years.

The y complain under Article 10 of the Convention that their right to freedom of expression has been violated in a manner which is not “necessary in a democratic society”. The collection of taxation information is not illegal as such and this information is public. The decision s of the Supreme Administrative Court mean in fact that the applicant companies are put under prior censorship while other newspapers have been able to continue publishing such information. Also a wide audience has a right to receive information.

Lastly, t he applicant companies complain under Article 14 of the Convention that they have been discriminated against vis-à-vis other newspapers which have been able to continue publishing the information in question .

QUESTIONS TO THE PARTIES

1. Was the length of the administrative proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?

2. Has there been an interference with the applicant companies ’ right to freedom of expression, in particular their right to impart information, within the meaning of Article 10 § 1 of the Convention? If so, was that interference prescribed by law and necessary in terms of Article 10 § 2?

3. Have the applicant companies suffered discrimination in the enjoyment of their Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 10 of the Convention?