Strasburg and Right to Information

Paragraph 1 of this article, inter alia, states: "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information an ideas without interference by public authority and regardless of frontiers...".

These provisions were often a basis for the European Court of Human Rights to protect different freedoms of expression. As interpreted by the Court, "expression" protected under Article 10 meant not only written or spoken word, but also pictures, videos and all other activities the aim of which was expression of an idea or presentation of information. The Court protected not only substance, but form as well. Printed documents, radio programs, paintings, films and electronic information system were also protected under Article 10 of the Convention.

The Court often and firmly protected the right of the media to impart information and the right of citizens to receive it. But the European Court of Human Rights has never before explicitly upheld that the right of access to information owned by a government is protected by any provision of the Convention. The Court itself expounded on it in the rationale of the ruling. Reminding that it upheld it was "hard to deduce from the Convention some general right of access to administrative information and documents", the Court concluded that it had recently embraced a broader interpretation of the notion of the "right to receive information", thus recognizing the right of access to information. This implies at least two important things. First, that the European Court of Human Rights will also provide in the future the protection of the right of free access to information of public importance. Citizens, journalists, media and everyone else will thus have at their disposal another mechanism for the protection of their right to know what their government does and how it does it. If national competent authorities (the Commissioner for Information and the Supreme Court) do not provide them protection of the right, they will be able to request it before the European Court of Human Rights.

The second thing is maybe even more important. The attitude of the Court that the right of free access to information is included in Article 10, paragraph 1 of the European Convention on Human Rights implies that limitation of that right is allowed and possible only under conditions set under paragraph 2 of the same article which envisages the following: "The exercise of these freedoms ... may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary". Thus, governments in every country may limit the exercise of this right only under the assumption that three cumulative conditions exist. First, that interference is set under the law. Second, that the objective of that interference is to protect one or more of the following interests or values: "national security", "territorial integrity", "prevention of disorder or crime", "protection of health, morals, reputation or the rights of others", "preventing the disclosure of information received in confidence" and "maintaining the authority and impartiality of the judiciary". Third and the most important - that the interference is necessary in a democratic society. In our reality, the right to access to information is sometimes limited even if none of these conditions are met, more often with one or two, but extremely rarely with three cumulative conditions met. A rationale in the case Társaság a Szabadságjogokért versus Hungary should remind responsible persons that this reality has to change. The sooner, the better.