CONCURRING OPINION OF JUDGE NICOLAOU

1 . In striking a balance between the applicant companies ’ right to freedom of expression and the right to personal privacy of others under, respectively, Articles 10 and 8 of the Convention, the Supreme Administrative Court had regard, inter alia , to 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 (OJ 1995 L 281, p. 31). This Directive, which aims at protecting individuals from the adverse effects of the processing and flow of tax data of a personal nature while at the same time enjoins States to provide exemptions or derogations in order that freedom of expression may also be safeguarded in furtherance of the public interest, is itself sensitive to the need of getting the balance right: see Article 9 of the Directive as well as recital 37 of its preamble. Article 9 provides in this regard that:

“Member States shall provide for exemptions or derogations ... 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 g overning freedom of expression.”

2 . Upon request by the Supreme Administrative Court for a preliminary ruling on questions relevant to the interpretation of the Directive, in the light of the matters at issue, the Court of Justice of the European Union sitting in Grand Chamber gave a ruling, the gist of which was (a) that the notion of journalism is to be interpreted broadly and, therefore, the activities of the applicant companies may be classified as “journalistic” but that it was for the national court to decide whether those activities were “solely for journalistic purposes” or, in other words, whether “the sole object of those activities (was) the disclosure to the public of information, opinions or ideas”; and (b) that any derogations and limitations were to “apply only in so far as ... strictly necessary”.

3 . The Supreme Administrative Court then proceeded with the examination of the case, fully following the guidance received from the CJEU. It concluded that, in the circumstances, the activities in question could not be regarded as activities pursued solely for journalistic purposes, that the public interest did not, in the present context, require the publication of personal data to such an extent and that, therefore, the limitations in relation to the protection of data did not apply. Consequently it requested the Data Protection Board to issue a prohibition.

4 . This outcome entailed economic loss for the applicant companies, basically in the form of profits. The Supreme Administrative Court did not include this aspect in the matters that needed to be taken into account. In my opinion it was right not to have done so. To have attributed importance to such loss would have been to envisage the possibility that protection under the Directive might be defeated if the loss was high, as could be the case where the infringement was on a particularly large scale, while protection would remain only if the loss was relatively low. I am not prepared to countenance that. Yet that is what the majority now do.

5 . In paragraph 73 of the judgment the loss allegedly sustained by the applicant companies is firstly viewed as a sanction against them. In my view it was not a sanction. Then it is said that the loss “is not, however, a direct consequence of the actions taken by the domestic courts and authorities but an economic decision made by the applicant companies themselves”. I am bound to say, with respect, that I am not quite sure what exactly that means but it certainly seems to effectively neutralize the idea of a sanction. Still, the idea of a sanction is repeated immediately further down in the same paragraph. The prohibition to publish is described as an administrative sanction and, as such, less severe than a criminal sanction; but no further reference is made to financial loss. I am unable to associate myself with this line of reasoning.

6 . There was certainly an interference with the applicant companies ’ right to publish. However, that interference was obviously justified as necessary and proportional on the basis of the balancing carried out by the Supreme Administrative Court in the context of the applicable legal framework and in light of Strasbourg case-law. Having regard to what this case was about, I consider that to have been enough. As I have already indicated, any loss sustained by the applicant companies was merely incidental to what was at stake. It was not an integral part of the considerations that had to be balanced and could not, therefore, have had any impact on the outcome.

DISSENTING OPINION OF JUDGE TSOTSORIA

1. I dissent from the majority ’ s conclusion that there has been no violation of Article 10 of the Convention in this case.

2. The core of this case is the right to freedom of expression, in particular freedom of the press, as exercised by the applicant companies. The issue at hand was the restriction on processing lawfully available taxation data concerning natural persons ’ taxable income and assets in the manner and to the extent that had been the case in 2002, when the applicant companies had published data on 1.2 million taxpayers and forwarded this information to an SMS service. Such taxation data constituted a matter of public record and a subject of public interest in Finland (see paragraph 65 of the judgment).

3. Freedom of expression is essential to a democratic society. To uphold and protect it, and to respect its diversity and its political, social and cultural missions, is the mandate of all governments. [1] Article 10 of the Convention guarantees not only the right to impart information but also the right of the public to receive it (see among other authorities, Ahmet Yıldırım v. Turkey , no. 3111/10, § 50, ECHR 2012, and Observer and Guardian v. the United Kingdom , 26 November 1991, § 59 (b), Series A no. 216). Any measures interfering with the right of the media to convey information, other than where limitations have been explicitly prescribed by law, do a disservice to democracy and often even endanger it (see, mutatis mutandis , Fáber v. Hungary, no.40721/08, § 37, 24 July 2012, with further references therein).

4. With a certain degree of hesitation I align myself with the conclusion of the majority that the interference with the applicant companies ’ freedom of expression was prescribed by the Personal Data Act and that it pursued the legitimate aim of protecting the “reputation or rights of others”. I also have doubts as to whether this case should have been analysed according to the criteria developed in Von Hannover v. Germany (no. 2) ([GC], nos. 40660/08 and 60641/08, §§ 104-107, ECHR 2012) and Axel Springer AG v. Germany ([GC], no. 39954/08, § 84, 7 February 2012) ( see paragraph 62 of the judgment).

5. Be that as it may, after applying the above-mentioned criteria the judgment concludes – and I subscribe to this conclusion – that the activities of the applicant companies, which contributed to a debate on a matter of public interest, raised no questions as to their compliance with the standards of responsible journalism and their good faith has not been called into question ( see paragraphs 63-67 of the judgment). The only problematic area for the national authorities and courts was the “extent of the published information”, which would determine whether the activities of the applicant companies fell under the notion of journalism or processing of personal data, which the applicant companies had no right to do ( see paragraph 68 of the judgment). The conclusion reached by the majority here served as the basis for shifting the balance from the applicant companies ’ freedom of expression (Article 10) to the protection of the private life of the taxpayers concerned (Article 8). I do not consider that the judgment has persuasively ascertained that the prescribed limitations on processing and consequently publishing taxation data were necessary for the protection of the right to privacy of either specific individual(s) or of society as a whole. Therefore, I do not agree with the majority that such measures were proportionate to the legitimate aim pursued.

6. Importantly, the judgment does not follow the established case-law finding a violation of Article 10 in cases where governments have taken measures to protect publicly available and known information on matters of public interest from disclosure (see, for example, Observer and Guardian, cited above, § 69, and Fressoz and Roire v. France [GC], no. 29183/95, §§ 50 and 53-56 , ECHR 1999-I ) .

7. The judgment upholds the decision of the domestic authorities to restrict the processing of taxation data which have been openly available and in the public domain in Finland under the Act on the Public Disclosure and Confidentiality of Tax Information, thus affecting the capacity of the applicant companies to publish such data. I consider that this restriction serves as a form of censorship that, as such, is incompatible with democracy. Moreover, restricting the rights and duties of newspapers to purvey information that is already available on a matter of legitimate public concern has been held to endanger democracy and to be characteristic of a totalitarian regime, as Lord Bridge put it in the Observer and Guardian case (cited above, § 36).

8. The domestic authorities gave a broad interpretation – endorsed by the majority – of the concept of respect for the private life of taxpayers in relation to the processing and subsequent publication of their taxation data. The decision by the Supreme Administrative Court of Finland to impose the restriction was made on the ground of the abstract and hypothetical need to protect privacy. No negative effect or harm was identified as having been inflicted upon any individual, nor had society been otherwise imperilled through publication of these data. Moreover, the publishing of taxation data has not been considered to jeopardise the privacy of taxpayers in Finland, even though a number of newspapers and websites have continuously published such data (see paragraph 41 of the judgment). Without sustainable grounds to believe that the right of privacy has been violated or that an imminent/real danger of such a violation existed, the imposition of severe restrictions on media freedom cannot serve the legitimate interest of society.

9. Regrettably, the majority agreed with the respondent State that the applicant companies ’ activities did not fall within the exception for the purposes of journalism in the Personal Data Act (see paragraph 31 of the judgment). It should be recalled that the inalienable elements of journalism are data collection, interpretation and storytelling. [2] The judgment, however, could lead to an interpretation that journalists are so limited in processing data that the entire journalistic activity becomes futile. This may be the case especially in circumstances where there are continuous efforts to limit freedom of expression, particularly in the light of the dynamic and evolving character of the media. The judgment does not follow the postulate that any interference with freedom of expression must be convincingly established and narrowly interpreted (see, for example, Hertel v. Switzerland , 25 August 1998, § 46, Reports of Judgments and Decisions 1998 ‑ VI) . By limiting the opportunity to publish data already disclosed to the public, the national authorities restricted the contribution of the applicant companies to debate on questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV, and Morice v. France [GC], no. 29369/10, § 125, 23 April 2015).

10. Another aspect of the judgment that may lead to further restrictions on freedom of expression is the linking of journalistic activity to the extent of the information published. Establishing a quantitative framework for publicly available information and limiting the freedom guaranteed by Article 10 on this ground does not correspond to the notion of a “pressing social need”. It is vital that freedom of expression is safeguarded against vague and disproportionate interference. Such an interpretation of the term “journalistic activities” cannot be in the best interests of a democratic society as understood in the case-law of the Court. This interpretation also deviates from the approach developed by the Court of Justice of the European Union to the interpretation of Directive 95/46/EC (see paragraphs 68 and 69 of the judgment). The Court should have construed and assessed the journalistic activities of the applicant companies against the backdrop of the essential role played by the media, including the press, in a democratic society and the fact that all persons who exercise their freedom of expression, including journalists, undertake “duties and responsibilities”, the scope of which depends on their situation and the technical means they use (see, for example, Handyside v. the United Kingdom , 7 December 1976, § 49, Series A no. 24 ). The respondent State should not have been afforded a wide margin of appreciation in the particular circumstances of the case (see, for example, Fressoz and Roire , cited above §45, and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III).

11. The question of the nature and severity of the measures taken by the domestic authorities is also a matter of concern. In paragraph 73 the Court concludes that the interference by the domestic authorities with the applicant companies ’ activities amounted to sanctions, albeit necessary and proportionate ones. I agree with Judge Nicolaou ’ s view, as expressed in his concurring opinion, that they were not sanctions as such (contrast and compare with Weber v. Switzerland , 22 May 1990, § 33, Series A no. 177; Öztürk v. Turkey [GC], no. 22479/93, § 66, ECHR 1999 ‑ VI; and Özgür Gündem v. Turkey , no. 23144/93, § 69, ECHR 2000-III). Nonetheless, the decisions of the domestic authorities entailed an extremely serious interference with the applicant companies ’ activities. In practice, while publishing as such was not prohibited, the domestic authorities ’ decisions prevented the applicant companies to a certain extent from processing data for publishing purposes. This led to futile attempts to continue publishing such data. As a result, the measures imposed not only limited the companies ’ participation in and contribution to debate on matters of legitimate concern ( see, for example, Lingens v. Austria , no. 9815/82, § 44, 8 July 1986; Bladet Tromsø and Stensaas , cited above, § 64; and Mosley v. the United Kingdom , no. 48009/08, § 116, 10 May 2011) but also led to the discontinuation of publication. In addition, this would inevitably have had financial consequences for the applicant companies. Hence, the severity of the measures imposed should have played a role in the proportionality analysis.

12. In the light of the foregoing, and given the interest a democratic society has in ensuring and preserving freedom of the press, I believe that the national authorities in the particular circumstances of the case did not apply standards in conformity with the principles embodied in Article 10 of the Convention and overstepped the margin of appreciation afforded to them. Consequently, the Court should have exercised its supervisory function and should have concluded that the interference with the applicant companies ’ right to freedom of expression was not “necessary in a democratic society”. This should have resulted in an award of just satisfaction to the applicant companies under Article 41 of the Convention.

[1] 1. European Charter on Freedom of the Press, 2009 .

[2] 2. B Van Der Haak, M Parks, M Castells , “ The Future of Journalism: Networked Journalism ” , International Journal of Communications , 6 (2012) p. 4.