1. MEDIA LAW Copenhagen University SESSION 7 Dirk VOORHOOF Ghent University www.psw.ugent.be/dv (->contact) www.psw.ugent.be/dv

2. Session 7.2 - FOE and FOI (freedom of information, access to public or official documents) - FOE and FOI (freedom of information, access to public or official documents)

3. Does Article 10 ECHR guarantee a right of access to information? A new perspective since the Court’s decision in the case of Sdruzeni Jihoceske Matky v. Czech Republic

4. Background Democracy (and information society) needs transparancy Positive obligation of member states to supply relevant information and to give access to official documents regarding matters of public interest? (National law, EU-law…) Is a right to access to public documents guaranteed by Article 10? Is a right to access to public documents guaranteed by Article 10? Court is / was reluctant.

5. Article 10 Right to express, impart, receive No right to seek information (cf Art. 19 ICPPR) ECtHR: right to recieve information includes no duty of authorities to actively provide information to the public

6. Shift in case law of Court Leander (personal files) Gaskin (personal files) Guerra (art. 8) Roche (art. 8) Influence of case law on “positive obligations” IACHR: 19 September 2006, Claude Reyes v. Chile

7. Sdruzeni Jihoceske Matky Dec. ECtHR 10 July 2006 Request for documents and plans regarding construction of nuclear power station Article 10 is applicable, although in casu refusal was “necessary in democratic society” Why? Importance of decision?

8. TASZ v. Hungary Dec. ECtHR 13 November 2008 ECtHR 14 April 2009, Társaság a Szabadságjogokért Request for document by Hungarian Civil Liberties Union (access to complaint by MP in case pending before Const. Court regarding modifications in Criminal Code on drug-related crimes) Article 10 is applicable! Gathering information is essential preparatory step in journalism Forum for public debate is not limited to media or professional journalists, in casu NGO Civil society’s important contribution to the discussion of public affairs

9. TASZ v. Hungary Dec. ECtHR 13 November 2008 ECtHR 14 April 2009, Társaság a Szabadságjogokért Creating monopoly of important information amounts to form of censorship NGO’s right to impart information to public was impaired State had an obligation not to impede the flow of information sought by TASZ

10. TASZ v. Hungary Dec. ECtHR 13 November 2008 ECtHR 14 April 2009, Társaság a Szabadságjogokért Refusal of access is in casu violation of Art. 10 - Broader interpretation of freedom to receive information - Elimination of barriers to exercise of press functions where such barriers exist solely because of an information monopoly held b public authorities - Information was ready and available - No privacy reasons in this context: public person, public debate, matter of public interest - Public watchdog role of media - Obstacles created in order to hinder access to information of public interest may discourage those working in the media or related fields from pursuing such matters + ability to provide accurate and reliable information

11. Kenedi v. Hungary, 26 May 2009 Case concerns the attempt of a historian, Mr. János Kenedi, to have access to certain documents deposited at the Ministry of the Interior regarding the functioning of the State Security Services in Hungary in the 1960s. Mr Kenedi’s, who earlier published several books on the functioning of secret services in totalitarian regimes, complained to the European Court about the Hungarian authorities’ protracted reluctance to enforce a court order granting him unrestricted access to these documents. For several years Kenedi tried to get access to relevant information from the Ministry, but to no avail.

12. Kenedi v. Hungary, 26 May 2009 Refusal of access is in casu violation of Art. 10 (+ breach of Art. 6 and 13) Court reiterated that "access to original documentary sources for legitimate historical research was an essential element of the exercise of the applicant's right to freedom of expression". Again the Court does not formulate a general right of access to (official) documents. The Court is however of the opinion that the access was necessary for the applicant to accomplish the publication of a historical study. The Court noted that the intended publication fell within the applicant’s freedom of expression as guaranteed by Article 10 of the Convention

13. Perspectives  Rec. 2002/2 COM on access to official documents  European Convention on Access to Official Documents, 27 November 2008 https://wcd.coe.int/ViewDoc.jsp?id=13777 37&Site=COE&BackColor https://wcd.coe.int/ViewDoc.jsp?id=13777 37&Site=COE&BackColor  Perspectives for investigative journalists Europe WOB http://www.wobbing.eu/ http://www.wobbing.eu/