Freedom of Expression and Freedom of Information: Part 1 The European Convention – Hugh Tomlinson QC

Introduction

In contrast to modern human rights instruments, the European Convention on Human Rights does not contain any express right to freedom of information.  This has often been identified as an important weakness in the Convention.  However, the position is changing: the Convention is a “living instrument” and recent case law suggests that, in accordance with international trends, the Convention may be evolving its own “right to freedom of information” as a fact of the right to freedom of expression in Article 10 of the Convention.  In the first part of this post we consider the position under Article 10.  The second part will deal with the trends in international law and other jurisdictions.  In the third part we will consider the present position in English law.

Article 10 and its case law

As is well known, Article 10(1) of the European Convention on Human Rights provides that:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”.

The freedoms to ‘receive’ and ‘impart’ information and ideas are not mere corollaries of one another: they are two independent rights (Sunday Times v United Kingdom (No 1) (1979) 2 EHRR 245 paras 65-66).

The conventional view is that the right to receive information under Article 10 does not entail a corresponding right of access to official information. Thus In Leander v Sweden ((1987) 9 EHRR 433) the applicant sought confidential Government information so he could bring a claim arising out of an unsuccessful job application. In dismissing the Article 10 claim, it was said:

“The Court observes that the right of 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 them. Article 10 does not, in the circumstances such as those of the present case, confer on an individual a right of access to a register containing information about his personal position, nor does it embody an obligation on the Government to impart such information to the individual” [74].

However, in subsequent decisions, the Court of Human Rights has recognised that there can be a right to access to official information.  In some cases this has been done by reference to Article 8 of the Convention (see Gaskin v United Kingdom (1989) 12 EHRR 36 paras 37, 52; see also McGinley and Egan v United Kingdom (1998) 27 EHRR 1). Most recently, in the Hungarian Civil Liberties Union case (Társaság a Szabadságjogokért v. Hungary, Judgment of 14 April 2009) the applicant had been refused access to a constitutional complaint made by an MP.  The Court said that “the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information” [27].  It went on to say that it had

“recently advanced towards a broader interpretation of the notion of “freedom to receive information” … and thereby towards the recognition of a right of access to information” [35]

In that case, the Court found a violation of Article 10 when the domestic courts had refused access to a complaint which sought constitutional scrutiny of certain amendments to the Criminal Code.  It concluded that obstacles created in order to hinder access to information of public interest might discourage the media and other public interest organisations from pursuing their vital role as “public watchdogs” [38].  As a result, the refusal to disclose the complaint was a breach of Article 10.

A similar result was reached in Kenedi v Hungary (Judgment of 26 May 2009) where it was held 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.

Council of Europe Materials

The recognition of a human right to freedom of information by the Court of Human Rights would be consistent with the trend of international human rights jurisprudence which is dealt with in the second part of this post.  It should also be noted that the Consultative (Parliamentary) Assembly of the Council of Europe has resolved that the right to freedom of expression involves a:

“corresponding duty for the public authorities to make available information on matters of public interest within reasonable limits and a duty for mass communication media to give complete and general information on public affairs” (Res 428 (1970), 21st Ordinary Session (Third Part), 22-30 Jan 1970, Texts Adopted.).

Although this resolution does not have binding effect, it indicates a trend in legal opinion within Contracting States (See P van Dijk, F van Hoof, A van Rijn and L Zwaak eds, Theory and Practice of the European Convention on Human Rights (4^th Edn, Intersentia, 2006) pp.787-788).  We have already noted that this formulation is wider that the modern concept of “freedom of information” which is now confined to “access to official information”.

In 2002, the Committee of Ministers adopted a detailed “Recommendation on Access to Official Documents” (Rec(2002)002) which invoked Articles 8 and 10 and recommended that

“Member States should guarantee the right of everyone to have access, on request, to official documents.  Limitations should be set down precisely in law, be necessary in a democratic society and should be proportionate to [specified legitimate aims]”

The Recommendation contains a detailed Explanatory Memorandum setting out the then understanding of the status of freedom of information under the Convention.

This trend is also illustrated by the recent Council of Europe Convention on Access to Official Documents (“the COAD”)(CETS No 205, 18 June 2009).  This has not yet been signed by the United Kingdom and is not yet in force.   It has, so far, only been ratified by Iceland, Norway and Sweden.  In its recitals, the COAD refers to Article 19 of the Universal Declaration and Articles 6, 8 and 10 of the Convention and to Declarations and Recommendations of the Committee of Ministers on freedom of expression and information.  By Article 2, the COAD provides that parties shall

“guarantee the right of everyone, without discrimination on any ground, to have access, on request to official documents held by public authorities”.

Hugh Tomlinson QC is a member of Matrix Chambers and of the Inforrm Committee. He is also a founding editor of the UKSC Blog.

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Freedom of expression and freedom of information

The European Convention on Human Rights

As is well known, Article 10(1) of the European Convention on Human Rights provides as follows:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises”.

The freedoms to ‘receive’ and ‘impart’ information and ideas are not mere corollaries of one another: they are two independent rights (Sunday Times v United Kingdom (No 1) (1979) 2 EHRR 245 paras 65-66).

The conventional view is that the right to receive information under Article 10 does not entail a corresponding right of access to official information. Thus In Leander v Sweden ((1987) 9 EHRR 433) the applicant sought confidential Government information so he could bring a claim arising out of an unsuccessful job application. In dismissing the Article 10 claim, it was said:

“The Court observes that the right of 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 them. Article 10 does not, in the circumstances such as those of the present case, confer on an individual a right of access to a register containing information about his personal position, nor does it embody an obligation on the Government to impart such information to the individual” [74].

However, in subsequent decisions, the Court of Human Rights has recognised that there can be a right to access to official information.  In some cases this has been done by reference to Article 8 of the Convention (see Gaskin v United Kingdom (1989) 12 EHRR 36 paras 37, 52; see also McGinley and Egan v United Kingdom (1998) 27 EHRR 1). Most recently, in the Hungarian Civil Liberties Union case (Társaság a Szabadságjogokért v. Hungary, Judgment of 14 April 2009) the applicant had been refused access to a constitutional complaint made by an MP.  The Court said that “the law cannot allow arbitrary restrictions which may become a form of indirect censorship should the authorities create obstacles to the gathering of information” [27]. It went on to say that it had

“recently advanced towards a broader interpretation of the notion of “freedom to receive information” … and thereby towards the recognition of a right of access to information” [35]

In that case, the Court found a violation of Article 10 when the domestic courts had refused access to a complaint which sought constitutional scrutiny of certain amendments to the Criminal Code.  It concluded that obstacles created in order to hinder access to information of public interest might discourage the media and other public interest organisations from pursuing their vital role as “public watchdogs” [38].  As a result, the refusal to disclose the complaint was a breach of Article 10.

A similar result was reached in Kenedi v Hungary (Judgment of 26 May 2009) where it was held 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.

The recognition of a human right to freedom of information by the Court of Human Rights would be consistent with the trend of international human rights jurisprudence which is dealt with below.  It should also be noted that the Consultative (Parliamentary) Assembly of the Council of Europe has resolved that the right to freedom of expression involves a:

“corresponding duty for the public authorities to make available information on matters of public interest within reasonable limits and a duty for mass communication media to give complete and general information on public affairs” (Res 428 (1970), 21st Ordinary Session (Third Part), 22-30 Jan 1970, Texts Adopted.).

Although this resolution does not have binding effect, it indicates a trend in legal opinion within Contracting States (See P van Dijk, F van Hoof, A van Rijn and L Zwaak eds, Theory and Practice of the European Convention on Human Rights (4^th Edn, Intersentia, 2006) 787-788).

1. This trend is also illustrated by the recent Council of Europe Convention on Access to Official Documents (“the COAD”)(CETS No 205, 18 June 2009).  This has not yet been signed by the United Kingdom and is not yet in force. In its recitals, the COAD refers to Article 19 of the Universal Declaration and Articles 6, 8 and 10 of the Convention and to Declarations and Recommendations of the Committee of Ministers on freedom of expression and information.  By Article 2, the COAD provides that parties shall “guarantee the right of everyone, without discrimination on any ground, to have access, on request to official documents held by public authorities”.

International Human Rights Instruments

The cautious approach of the Court of Human Rights to freedom of information can be contrasted with the approach of other international bodies.  In its very first session in 1946, the UN General Assembly adopted Resolution 59(I), stating,

“Freedom of information is a fundamental human right and … the touchstone of all the freedoms to which the United Nations is consecrated.”

This view has been repeated by United Nations bodies on a number of occasions over subsequent decades.

The United Kingdom is a party to the International Covenant on Civil and Political Rights (“the ICCPR”) and is bound by its terms as a matter of international law.  By Article 19(2) the ICCPR provides that everyone shall have a right to freedom of expression which shall include “freedom to seek, receive and impart information and ideas of all kinds”. In 1998, Special Rapporteur on Freedom of Opinion and Expression declared that Article 19 of the ICCPR imposes:

“a positive obligation on states to ensure access to information, particularly with regard to information held by government in all types of storage and retrieval systems”.  (UN Commission Human Rights (1998) Right to Freedom of Opinion and Expression Commission on Human Rights Resolution 1998/42 Res. E/CN.4/1998/42, Para. 2)

In 2004 report, a different Special Rapporteur dealt expressly with the source of the positive constituent of the right:

“Although international standards establish only a general right to freedom of information, the right of access to information, especially information held by public bodies, is easily deduced from the expression ‘to seek [and] receive … information’ as contained in articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights” (Report of the Special Rapporteur, Ambeyi Ligabo, UN ECOSOC, 61st sess, UN Doc E/CN.4/2005/64 (2004) [39]).

The Human Rights Committee has recognised that Article 19 implies that citizens “should have wide access to information” (See Gauthier v Canada 633/95, para 13.4)

2. The fullest consideration of the issues concerning freedom of information as an aspect of the right to freedom of expression is to be found in the decision of the Inter American Court of Human Rights in the case of Claude Reyes v Chile ((C/151) 19 September 2006),  In that case it was concluded that the “freedom of expression” provision of the Inter American Convention, Article 13, included an implied right of general access to government held information.  The Court held that

“by expressly stipulating the right to “seek” and “receive” “information,” Article 13 of the Convention protects the right of all individuals to request access to State-held information, with the exceptions permitted by the restrictions established in the Convention”.

This decision is of persuasive authority and is widely regarded as giving a definitive analysis of the “right to receive information”. See, for example, the recent report of the Commonwealth Human Rights Initiative, CHRI Report, Our Rights, Our Information (2008) which deals comprehensively with the position http://www.humanrightsinitiative.org/publications/rti/our_rights_our_information.pdf

Domestic Cases from Other Jurisdictions

In the case of The Criminal Lawyers’ Association v The Ministry of Public Safety and Security ((2007) 86 OR (3d) 259; an appeal was heard by the Supreme Court of Canada on 11 December 2008 but still has not been given – the longest period of deliberation by the court for nearly 20 years, see this post on “The Court” blog.) the Court of Appeal of Ontario considered the right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms in the context of the public interest override provision in section 23 of the Freedom of Information and Protection of Privacy Act 1990 (Ont).  A judge had stayed a murder trial on grounds of material non-disclosure by the prosecution, making very critical remarks about the police, including abusive conduct, deliberate editing of useful information and negligently failing to maintain original evidence. The provincial police investigated and issued a press release saying there was no evidence of a deliberate attempt to obstruct justice.   The claimant was an NGO which monitored the criminal justice system. It was concerned about the discrepancy between the judge’s findings and the outcome of the investigation by the provincial police. It sought access to documents concerning that investigation, which was refused by the government, relying on solicitor-client privilege. The exemption claims were upheld, but the Information Commissioner applied the public interest override to order release of the documents to which it applied. The commissioner could not do so with respect to the documents to which solicitor-client privilege applied because this was excluded from the operation of the override by the terms of section 23.

The Court held that section 23 unjustifiably limited the applicant’s right of freedom of expression as guaranteed in section 2(b) of the Charter because section 23 did not allow solicitor-client privilege to be overridden when the public interest compellingly required it.   It held that the public interest override provision infringed the association’s right to freedom of expression because the scheme of the freedom of information legislation was to assist expression.  It ordered words to be read into the statute to permit a public interest override in solicitor client privilege cases.

In XYZ v Victoria Police ([2010] VCAT 255 para 558) after full consideration of the international cases and textbooks, the Victorian Civil and Administrative Tribunal held that the right to right to freedom of expression in s 15(2) of the Victoria Charter of Human Rights and Responsibilities

“implicitly imposes a positive obligation on the government to give access to government-held documents (freedom of information). The obligation I am specifying does not extend to creating documents, collecting data or disseminating information which has not been sought. The right to obtain government-held documents is not absolute and is subject to justifiable exceptions for objective, proportionate and reasonable purposes”.

Conclusion

In conclusion, therefore, the right to freedom of information is now properly described as a “human right”.  It has been widely recognised as being an essential aspect of the right to freedom of expression, a right protected by all general human rights instruments, including the Convention.  Without access to official information, many other human rights such the right to private and family life or to effective access to the Courts cannot be effectively exercised.  The promotion and defence of the central important rights to freedom of expression, privacy and access to court directly and necessarily involves the establishment and exercise of the fundamental human right to access to official information.