Voorhoof, Dirk

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Ghent University Academic Bibliography

IRIS 2015-8/1European Court of Human Rights: Satakunnan Markkinapörssi Oy and Satamedia Oy v.FinlandAfter proceedings at national level over eight years, and after a preliminary ruling by the Court of Justice ofthe European Union (CJUE) on 16 December 2008 (Case C-73/07), the European Court of Human Rights (ECtHR)has delivered a judgment in a highly interesting case of conflicting rights between the right of privacy and theright to freedom of expression, in the domain of protection of personal data and data journalism. The Courthas come to the conclusion that a prohibition issued by the Finnish Data Protection Board that prohibited twomedia companies (Satakunnan Markkinapörssi Oy and Satamedia Oy) from publishing personal data in the mannerand to the extent Satamedia had published this data before, is to be considered a legitimate interference inthe applicants’ right to freedom of expression and information. More precisely, the Finnish authorities forbadeSatamedia from collecting, saving and processing to a large extent taxation data, with the result that an essentialpart of the information published in the applicant’s magazine Veropörssi could no longer be published and anSMS-service was discontinued. The ECtHR agrees with the Finnish authorities that the applicants could not rely onthe exception of journalistic activities, as the publication of the large amount of taxation data by Satamedia wasnot justified by a public interest. The Court accepts the approach of the Finnish Supreme Administrative Court thatit was necessary to interpret Satamedia’s freedom of expression strictly, in order to protect the right of privacy ofFinnish citizens.The European Court recognises, however, the general subject-matter, which was at the heart of the publicationin question; namely the taxation data about natural persons’ taxable income and assets, while such data are amatter of public record in Finland, available to everyone. The Court agrees that as such this taxation informationwas a matter of public interest. The Court also emphasises that such data is public in Finland, in accordance withthe Act on the Public Disclosure and Confidentiality of Tax Information, and that there was no suggestion thatSatamedia had obtained the taxation data by subterfuge or other illicit means. The Court equally observes thatthe accuracy and reliability of the published information was not in dispute. According to the European Court theonly problematic issue was the scale of the published information by Satamedia, as the Veropörssi magazine hadpublished in 2002 taxation data on 1.2 million persons. According to the domestic authorities, the publishing oftaxation information to such an extent could not be considered journalism, but the processing of personal datawhich Satamedia had no right to do. The Court’s judgment also contains a reference to the preliminary rulingof the CJUE of 16 December 2008, which found that the activities of Satamedia related to data from documentswhich were in the public domain under Finnish legislation, and could be classified as “journalistic activities” if theirobject was to disclose to the public information, opinions or ideas, irrespective of the medium which was used totransmit it.Leaving a broad margin of appreciation, the European Court of Human Rights accepts the finding by the Finnishauthorities that the publication of personal data by Satamedia could not be regarded as journalistic activity, inparticular because the derogation for journalistic purpose in the Personal Data Act (see also Article 9 of Protectionof Personal Data Directive 95/46/EC of 24 October 1995) was to be interpreted strictly. The European Court is of theopinion that the Finnish judicial authorities have attached sufficient importance to Satamedia’s right to freedomof expression, while also taking into consideration the right to respect for private life of those taxpayers whosetaxation information had been published. The Court finds that the restrictions on the exercise of Satamedia’sfreedom of expression were established convincingly by the Supreme Administrative Court, in line with the Court’scase law. In such circumstances the Court would require strong reasons to substitute its own view for that of thedomestic courts.The Court finally notes that Satamedia was not prohibited generally from publishing the taxation information aboutprivate persons, but only to a certain extent. The fact that the prohibition issued lead to the discontinuation ofVeropörssi magazine and Satamedia’s SMS-service was, according to the Court, not a direct consequence of theinterference by the Finnish authorities, but of an economic decision made by Satamedia itself. The Court alsotakes into account that the prohibition laid down by the domestic authorities was not a criminal sanction, but anadministrative one, and thereby a less severe sanction. Having regard to all the foregoing factors, and takinginto account the margin of appreciation afforded to the State in this area, the Court considers that the domesticcourts struck a fair balance between the competing interests at stake. Therefore there has been no violation ofArticle 10 of the European Convention on Human Rights (ECHR). Only one judge dissented, emphasising that themajority’s approach does not follow the established case law of the Court, finding a violation of Article 10 in caseswhere national authorities have taken measures to protect publicly available and known information on matters ofpublic interest from disclosure. The dissenting opinion also states that no negative effect or harm was identifiedas having been inflicted upon any individual, nor had society been otherwise imperilled through the publication ofIRIS 1the taxation data at issue. It states further that “regrettably, the majority agreed with the respondent state thatthe applicant companies’ activities did not fall within the exception for the purposes of journalism in the PersonalData Act”, and that this can lead to an interpretation “that journalists are so limited in processing data that theentire journalistic activity becomes futile (..), particularly in the light of the dynamic and evolving character ofmedia”.Apart from rejecting the applicants’ arguments with regard to their right to freedom of expression and informationunder Article 10 of the ECHR, the Court also rejected Satamedia’s claim that Article 14 of the ECHR had beenviolated. Satamedia had argued that they had been discriminated against vis-à-vis other newspapers, which hadbeen able to continue publishing the taxation information in question. According to the European Court, Satamediacould not be compared with other newspapers publishing taxation data, as the quantity published by them wasclearly greater than elsewhere. Therefore Satamedia’s situation was not sufficiently similar to the situation ofother newspapers, and hence there was no discrimination within the terms of Article 14 of the ECHR. Indeed, inorder for an issue to arise under Article 14 of the ECHR, there must be a difference in treatment in relevantlysimilar situations, which was not the case in this context. The European Court found this part of the applicationmanifestly ill-founded and therefore inadmissible.The Court did find however a violation of Article 6 § 1 of the ECHR (fair trial) in this case, as the length of theproceedings at domestic level (six years and six months) was excessive and failed to meet the “reasonable time”requirement, even taking into account the complexity of the case.• Judgment by the European Court of Human Rights (Fourth Section), case of Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, Appli-cation no. 931/13 of 21 July 2015http://merlin.obs.coe.int/redirect.php?id=17636EN• Judgment of the Court (Grand Chamber) in Case C-73-07 Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy, 16 December 2008http://merlin.obs.coe.int/redirect.php?id=17637DE EN FR CS DA EL ES ET FI HU IT LT LV MT NL PL PT SK SL SV HRDirk VoorhoofGhent University (Belgium) & Copenhagen University (Denmark) & Member of the Flemish Regulator for theMediaThe objective of IRIS is to publish information on legal and law-related policy developments that are relevant to theEuropean audiovisual sector. Despite our efforts to ensure the accuracy of the content, the ultimate responsibilityfor the truthfulness of the facts on which we report is with the authors of the articles. Any opinions expressedin the articles are personal and should in no way be interpreted as representing the views of any organisationsrepresented in its editorial board.© European Audiovisual Observatory, Strasbourg (France)IRIS 2

European Court of Human Rights: Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland

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European Court of Human Rights: Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland

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