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ECHR - Business and Human Rights

Freedom of information

German Federal Court of Justice on impact of freedom of information on copyright

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In a much-anticipated judgment, the German Federal Court of Justice has dealt with the impact freedom of expression has on the interpretation of intellectual property law. The Court held that intellectual property law cannot be used to prohibit the publication of military situation reports which is in the public interest.

Facts

German troops are deployed in Afghanistan. Every week reports on the military situation in Afghanistan (and in other places in which members of the German forces are deployed) are drafted. These so called ‚military briefings‘ are distributed to selected members of parliament, to sections of the ministry of defence and to other ministries. They are categorized as ‚classified – restricted ‘. This is the lowest of four degrees of secrecy which exist under German law.

A German newspaper, the ‚Westdeutsche Allgemeine Zeitung (WAZ)‘ requested access to the military briefings on the situation in Afghanistan which had been drafted between 2001 and 2012. The request was denied. The newspaper succeeded to obtain copies anyway from an unknown source. It published parts of the documents on the internet in the form of scanned papers, with a short introduction and encouraged its readers to submit comments.

Proceedings in Germany

The German government requested an injunction, claiming an infringement of its copy right. The Regional Court issued the injunction; the Funke Media GmbH – the company which publishes the newspaper – appealed.

The Court of Appeal upheld the first-instance judgment. It relied on the ‘Law on copy right and related rights’. This law confers on the author the right to authorize or prohibit the publication of his work. Section 50 of the law provides for an exception: The publication in media for purposes of reporting on current events is permitted to the extent necessary for the reporting.

The Court of Appeal held that the military briefings constituted works protected by copy right. It stated that the exception which allows publication for purposes of reporting for current events did not apply since the mere publication of scanned copies did not constitute journalistic work and therefore did not fall within the scope of reporting.

Preliminary ruling of the Federal Court of Justice

The publishing house appealed to the Federal Court of Justice. The Federal Court of Justice referred the case to the European Court of Justice for a preliminary ruling. It expressed doubts that the military briefings enjoyed the protection of copy right law since it was questionable whether they constituted ‘original creations’. According to the Federal Court of Justice the question could remain open, though, if the publication was at any rate allowed for other reasons.

The ‘Law on copy right and related rights’ transposes into national law EU Directive 2001/29. The directive obliges member states to confer on authors the exclusive to authorize or prohibit the communication to the public of their work. It gives member states permission to provide for exceptions to or limitations on this right for the reporting in current events.

The Federal Court of Justice asked the European Court of Justice, among other questions, in which way the European Charter of Fundamental Rights had to be taken into account when assessing the scope of the exceptions applying to the reporting on public events. It also asked whether the fundamental rights of freedom of information and the freedom of the press could justify exceptions to the exclusive right of the author to prohibit the publication of his work.

On 29 July 2019, the Grand Chamber of the European Court of Justice handed down its judgment (C-469/17). It held that freedom of information and freedom of press, enshrined in article 11 of the EU Charter of Fundamental Rights, are not capable of justifying a derogation from the author’s exclusive right to communicate the work to the public which go beyond the exceptions stipulated in the directive.

With regard to the second question, the Grand Chamber of the European Court of Justice referred to the jurisprudence of the European Court of Human Rights. The ECtHR had held in Ashby Donald and others v. France that a balance had to be struck between copyright and freedom of expression. It had stated that the nature of the information divulged was particularly relevant, inter alia whether it contributed to political discourse.

The European Court of Justice held that domestic courts had to consider all circumstance of the case when striking the balance between the competing rights. The balancing act had to be based on an interpretation of the law which was consistent with its wording and at the same time had sufficient regard to freedom of expression.

Judgement of Federal Court of Justice

The Federal Court of Justice held that the publication had been lawful.

It left open the question whether the military briefings attracted the protection of copy right law. At any rate, the exception allowing the publication for purposes of reporting on current events applied. The Court of Appeal had erroneously decided that the publication of the military briefings did not constitute reporting. It had not considered sufficiently that the newspaper had not only published excerpts from the briefing but also drafted an introduction putting them into context, systematized them and invited readers to engage in a discussion.

When balancing the copyright against freedom of expression, it had to be considered that the military briefings had no commercial value. The objective of copy right law was not to ensure the German government’s interest in secrecy of the documents. There were other laws serving this purpose, which were not applicable in the case at hand, though.

Copy right law aimed at guaranteeing that it was up to the author to decide whether to share his work with the public. In the circumstances of the case, this interest did not outweigh the freedom of the press and invoked by the publishing house. In view of the political debate concerning the German involvement in Afghanistan and in view of the considerable public interest in the matter, the interest in publishing the briefings outweighed the author’s interest protected by copy right law.

The full text of the judgment is not available yet; the summary of the Federal Court of Justice’s reasoning is based on a press release published by the court.

 

 

 

 

Access to information under article 10 ECHR – Centre for Democracy and the Rule of Law v. Ukraine

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After the judgment in Studio Monitori v Georgia, the European Court of Human Rights has further developed its line of case law on access to information under article 10 ECHR in ‚Centre for Democracy and the Rule of Law v. Ukraine‘. The case concerns a request for access to information in connection to the parliamentary elections held in Ukraine in 2014.

Facts

The applicant was an NGO dedicated to furthering the rule of law in Ukraine. At the time the application was filed, the applicant was called Media Law Centre.

Ukrainian law set out that candidates standing in the 2014 election had to submit their CV to the Central Election Commission when registering. The Central Election Commission published parts of the information contained in the CVs on a website.

In 2014, the applicant asked the Central Election Commission to provide it with copies of the CVs the candidates had submitted. The Commission refused. It pointed out that the requested information constituted confidential information protected by the right to private life. It stated that it could only use the CVs for the purposes for which they had been provided and that the candidates had not consented to disclosure of information regarding their work history, family, address and telephone, which was contained in their CVs.

The applicant organization filed a lawsuit on the basis of the Access to Public Information Act. It pointed out that the requested information regarding the candidates’ education, their work history and families was relevant to assessing the level of competence of the respective candidates and to establish potential conflicts of interest.

The court dismissed the civil action. It stated that information about the candidates had already been published on the website of the Central Election Commission. According to the court, the applicant’s head failed to substantiate why further information was needed for the voters to exercise their right to vote effectively.

The court also referred to the judgment of the European Court of Human Rights in the case von Hanover v. Germany. It stated that the European Court of human rights had headed in that case that restrictions on the rights enshrined in article 10 ECHR are permissible when it is necessary to protect rights guaranteed by the right to private life pursuant to article 8 ECHR.

The applicant organization appealed against the judgment. It submitted that the case von Hannover v. Germany was not pertinent to the case at hand, because the requested information did not concern the private life of the candidates but their education, job history and families.

The Court of Appeals upheld the first instance judgment; the High Administrative Court refused to institute proceedings for review of the lower court’s decision on points of law.

Legal assessment

Admissibility

The Court has the task to control whether states comply with their obligations under the European Convention on Human Rights (article 19 ECHR). Consequently, it only has jurisdiction to entertain cases which regard potential violations of the ECHR; only applications concerning such a violation are admissible. The question, whether an action or omission by a state falls within the scope of a Convention right is therefore a question of admissibility.

The Court underlined that it was a question of admissibility whether article 10 ECHR conferred a right of access to information. However, it stated that the question was linked closely to the merits and decided to examine the applicability of article 10 ECHR together with the question whether there had been an interference under the merits of the case.

Merits

The Court pointed out that it had established in Magyar Helsinki Bizottsag v. Hungary four criteria to assess whether article 10 ECHR confers a right to access information in a given case:

  • The purpose of the information request
  • The nature of the information sought
  • The particular role of the seeker of information in ‘receiving and imparting’ it to the public
  • Whether the information thought is readily available

The Court pointed out that the applicant organization had conceded during the proceedings before the Court that the candidates’ addresses and phone numbers could not have been disclosed. It also pointed out that the list of family members had been available from alternative sources. In regard to this information, the Court was of the view that there had not been an interference with the applicant’s rights under article 10 ECHR

However, based on the criteria mentioned above, the court found that the refusal to provide the applicants with information regarding the candidates’ work history and education amounted to an interference with the applicant’s rights under article 10 ECHR. It stated that the purpose of the information request had aimed at providing transparency on the candidates’ qualification for office and potential conflict of interests. The applicant organization had clearly explained that on the domestic level. Regarding the nature of the requested information, the Court found that it had been clearly in the public interest.

Also, the applicant organization had an important function as a public watchdog. The court added that the information had been readily available.

Thus, the request to access the information had fallen within the scope of article 10 ECHR; the refusal to provide the information had amounted to an interference with that right.

The Court conceded that there had been a legal basis for this interference; it was also of the view that interference had served a legitimate aim.

The Court examined whether the interference had been necessary in a democratic society. It noted that the requested information constituted personal data but much of it had been already in the public sphere. It concluded that it was therefore not necessary to balance the candidates’ rights under article 8 ECHR with the rights under article 10 invoked by the applicant organization. It stated that the candidates had submitted their CV for purposes of the parliamentarian election and thus exposed their qualifications and record to close public scrutiny.

The Court was of the view that the domestic courts had failed to conduct an adequate balancing exercise. They had, according to the Court, just referred to the candidates’ right to private life, but not sufficiently considered what harm the disclosure of their education and work history could actually cause.

The Court concluded that the refusal to provide this information had not been necessary in a democratic society. It found a violation of article 10 ECHR

Right to access to information under art. 10 ECHR- Studio Monitori v. Georgia

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Background

In Studio Monitori and others v. Georgia, the European Court of Human Rights has examined under which circumstances article 10 ECHR confers a right to access to information.

Article 10 ECHR enshrines the right to freedom of expression. The second sentence of the article states, inter alia, that this right shall include ‘freedom to receive information’. It is subject to debate whether this language should be understood as implying a right to access information. For a long time, the European Court of Human Right has been reluctant to subscribe to that interpretation. In Magyar Helsinki Bizottsag v. Hungary, the Grand Chamber modified the Court’s stance on the issue and held that article 10 may provide a legal basis to access information if certain criteria are met. The recent case Studio Monitori and others v Georgia gave the Court the opportunity to reiterate its position on the right to access information under article 10.

Facts

The judgment deals with two applications which had been joined for adjudication in a single judgment

The first application was lodged by a NGO and one of its members, a journalist. The NGO had been founded to conduct journalistic investigations into matters of public interest. The NGO had requested access to a file in a criminal case against a third person. The registry of the court which kept the file informed the applicant that the file contained personal information about the defendant as well as classified information. It asked the applicant to explain why it wished to access the case file. 

The applicant submitted a court action in order to get access to the file. A public hearing took place in which the representative of the applicant pointed out that the applicant sought to access the file for purposes of a journalistic investigation project. She did not provide any further details on this, though. Instead, she relied on provisions article 37 of the General Administrative Code of Georgia. This provision stated that everybody had the right to access public information, regardless of the form in which it had been stored.

The second application had been submitted by a lawyer who was serving a jail sentence. While in prison, he had requested copies of court orders imposing pre-trial detention which had been issued in six different criminal proceedings. The cases had not been related to the applicant’s case.

The court provided him with copies of the operative part of the decisions. The lawyer submitted a court action to gain access to the full text of the decisions; he, too, relied on article 37 of the General Administrative Code. His action was dismissed. The court pointed to article 3 of the General Administrative Code which set out that article 37 did not apply to the judiciary.

Both applicants submitted applications to the European Court of Human Rights.

Legal assessment

Admissibility

The Court briefly discussed the admissibility of the application. The legal issue the applications gave rise to was whether article 10 ECHR conferred a right to access information. On the one hand, that question regards the Court’s jurisdiction. The Court is mandated to ensure that states meet their obligations under the ECHR. Consequently, it is only competent to examine the application if, in principle, an obligation to grant access to information can be inferred from the Convention. 

On the other hand, the question whether article 10 entails such a right concerns the core of the guarantees afforded by that provision. The Court therefore decided to examine the question on the merits of the case.

Merits – Right to access to information pursuant to article 10.

Development

For a long time, the Court has rejected the interpretation that article 10 confers a right to access information.  In Leander v. Sweden, it stated: ‘The Court observes that the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 (art. 10) does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual.’

However, the Court held in a number of cases that article 10 ECHR was breached if the applicant had obtained a judicial decision granting access to certain documents and the relevant authorities had not complied with the judgment. For example, in Youth Initiative for Human Rights v Serbia, the applicant NGO had requested data on the use of secret surveillance measure from the Serbian intelligence agency based on the Serbian Freedom of Information Act. The Agency rejected the request; the applicant obtained a final judgment ordering the Agency to supply the requested information. The Agency failed to provide it. The Court found a violation of article 10 ECHR. 

In Magyar Helsinki Bizottsag v Hungary, the Grand Chamber has further modified the Court’s jurisprudence regarding the right to access to information under article 10 ECHR.

The applicant in that case was an NGO involved in the area of justice reform. It had run a project aiming to improve the quality of services provided by ex-officio lawyers. As part of this endeavour, it requested information on the names of ex-officio lawyers suggested to suspects by police officers since it suspected that lawyers were not chosen from the list of available lawyers provided by the bar association. The requests were based on the Hungarian ‘Data act’ which provided for access to information of public interest. 

Criteria

Referring, inter alia, to a growing international consensus on the importance of access to information, the Court held that a request to obtain information may be based on article 10 in certain cases. It set out four criteria:

  • The access to the requested information is a necessary requirement for the person to divulge information or to exercise his freedom of expression. This applies in particular to journalists or other groups of persons facilitation public debates.
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  • The requested information is in the public interest; e.g. it concerns the way in which public affairs are conducted
  • The person or entity requesting the information plays a role in initiating or facilitating public debates, for example as a journalist or an NGO
  • The information is readily available, i.e. it does not have to be gathered or compiled first

Application of principles

Applying these principles, the Court found no violation of the Convention.

Regarding the first applicants, it stated that their had sought the information in question to facilitate a public discussion. However, the information had not been necessary for the applicants to exercise their freedom of expression. During the domestic proceedings, they had been given the opportunity to explain why they needed the information but had failed to provide answers. The Court also pointed out that the applicants had been able to finalise their journalistic investigation without receiving the requested information.

In respect of the lawyer who had requested access to court decision on pre-trial detention, the Court pointed out that – unlike journalists or certain NGOs – he was not a ‘public watchdog’ mandated to facilitate public discussions. He, too, had failed to explain why he needed the requested information. The Court also expressed doubts that the information was in the public interest.

Consequently, there was no breach of article 10 ECHR.