ECtHR: Right to information according to Art. 10 ECHR – Press or anybody?

The ECtHR rejected on 6 January 2015 a German’s appeal and ruled that public authorities do not necessarily infringe Art. 10 of the Convention by refusing to give information (application no. 70287/11). 

Ref. Jur. Gregor Euskirche, Tobias Raab

In the case at matter, the city of Wuppertal, Germany, refused to give information on payments, which Wuppertal and its corporations gave to political parties, to the appellant, arguing that processing the data of all published balance sheets would cause an enormous expenditure of resources and that the appellant is not a representative of the press. The only way for him to get the information would apply according to the law on freedom of information (the so called “Informationsfreiheitsgesetz”), after which the appellant would have to reimburse the arising expenses.

Neither an administrative proceedings review, nor legal action according to the press law in North Rhine-Westphalia (NRW) were successful, as the appellant’s publications were not judged as “press releases”, although the appellant pointed out that he was infringed on the rights Art. 10 of the Convention granted him, as he was editor and publisher of the “Rundfunk-Berichte” (Broadcasting-Reports). Despite the fact that collecting information was an important part of a journalist’s work and, therefore, it must be included within press freedom, the ECHR made it clear that there was no state obligation to provide that information in a specific way, especially if this would cause an enormous expenditure of resources.

The Court usually favours a broad interpretation of Art. 10 of the Convention. Considering the press and its function as “social watchdog”, this becomes even more important in cases that need extra verification because the state is the only one having that information. The ECtHR also pointed out that it is not solely the duty of the press to organise audiences for public debates; NGOs can fulfil the function of “social watchdog” as well, if they start debates of public interest.

The Court however did not decide whether the appellant in the case at matter was to be seen as a representative of the press or some sort of NGO, contributing to the formation of public opinion by organising an audience for public debates. It is certain that the appellant was collecting information of public interest and intended to publish it, and therefore was functioning as a watchdog, just the way an NGO would have been.

The ECtHR had approved a right to information from the authorities, if that was information of big public interest that had not been published before (e.g. Társaság a Szabadságjogokért v. Hungary, no. 37374/05 from 14 April 2009). In contrast to Társaság, the appellant in the case at matter did not request access to a specific document of the authorities. He asked the authorities to process the data of an enormous amount of published balance sheets. In the Court’s opinion, cities and their corporations publish information on their payments at the end of each fiscal year, which means it would have been possible for the appellant to collect the requested information himself in a first step. If more far-reaching information would have proven to be necessary, he could have requested that information in a second step.

Even if the appellant was not to be judged as a representative of the press, and therefore could not have requested the information according to § 4 of the Press Law, his claim would have been successful according to § 4 IFG NRW (Law on freedom of information of North Rhine-Westphalia) as “any person”. The ECtHR also found the reimbursement of the arising expenses according to § 11 Abs. 1 IFG NRW not being disproportional.

Tobias Raab works as a scientific researcher at the Institute of European Media Law (EMR), Saarbrücken/Brüssel.

Ref. Jur. Gregor Euskirchen worked as a junior lawyer at the Institute of European Media Law (EMR), Saarbrücken / Brussels

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The decision of the ECHR is available here.