A recent judgment of the European Court of Human Rights in Magyar Helsinki Bizottság v Hungary could be a ‘game-changer’ for decision-making in Freedom of Information and other information-access schemes. We look at the facts of the case and consider the likely impact on requests for access to information, particularly where ‘public interest’-motivated requests are made, such as by journalists or NGOs.
In the recent case of Magyar Helsinki Bizottság v Hungary in the European Court of Human Rights (the "ECtHR"), it was found that a refusal by particular Hungarian authorities of a request for access to information made by an NGO performing a “social watchdog”-type function in the public interest, amounted to an unjustified breach of Article 10 of the European Convention on Human Rights.
Thus, the refusal breached the rights, protected by Article 10, to freedom of expression, and to receive and impart information and ideas.
While, under Article 10, interference with the exercise of those rights can be justified in particular circumstances prescribed by law, and necessary in a democratic society, the Court found that the claimed justification in this case did not apply.
Each case will turn on its own facts and circumstances. However, the Court clearly now considers Article 10 to recognise a positive human right to seek or gain access to information, rather than merely a right to share, or impart, information. According to the Court, this is at least where access to information is "instrumental for the individual's exercise of his or her right to freedom of expression, in particular the 'freedom to receive and impart information' and where its denial constitutes an interference with that right”.
The Court said that, in assessing whether access to particular information was “instrumental” in this sense, could be determined by reference to the following indicative guidance:
- Is the request made so as to exercise the requester’s right to receive and impart information and ideas to others?
- Is the requested information necessary to achieve this, and is the information ready, available and of genuine public interest?
- While not determinative - is the role of the requester to exercise "watchdog functions" to gain access to information in order to report on matters of genuine public interest, e.g., NGO, journalist, or other similar requester?
The test will then be whether refusal of access in such circumstances is justified by reference to a formality, condition, restriction or penalty “prescribed by law”, which pursues one or more of the legitimate aims mentioned in paragraph 2 of Article 10, and which is “necessary in a democratic society”.
This decision is likely to assume future importance when considering, deciding (or justifying decisions) on, requests for access to information. This is particularly so when applying public interest tests in relation to the granting or refusal of access. It will be especially significant where the requester has a particular “watchdog”-type role, for example, NGO; journalist; blogger; academic, etc., and is making the request so as to receive and impart information of interest and importance to society as a whole.