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16.10.2015

Finland: “Eight year tax case is excessive to rule on balance between freedom and privacy” says ECHR

Sebastian Schweda

A prohibition, issued by Finnish authorities, to publish taxation data of a large number of Finnish citizens does not violate the right to freedom of expression and information, the European Court of Human Rights (ECtHR) ruled in a judgment handed down on 21 July 2015.

In fact, according to the ECtHR the authorities had struck a fair balance between the competing rights to freedom of expression and information (Art. 10 of the European Convention on Human Rights, ECHR), on the one hand, and the right to privacy (Art. 8 ECHR), on the other hand. In particular, the publishing house concerned could not invoke exemptions to the Finnish data protection regime applicable to the processing of personal data for journalistic purposes.

The applicants in the case, collaborating media companies Satakunnan Markkinapörssi Oy and Satamedia Oy, had been publishing, on an annual basis, an income and assets index of Finnish citizens in their Veropörssi magazine since 1994. Prior to that, the underlying data had already been made public by the Finnish tax authorities, in accordance with national law.

Later, Satamedia also offered an SMS service allowing users to retrieve the same information concerning a specific individual. The Finnish Data Protection Ombudsman objected to the extent of the data processing by the two companies – which in the year at issue (2002) included information on approximately one third of the Finnish population – because it lacked a proper legal basis.

The exemptions for journalistic activities foreseen in the Finnish Personal Data Act did not apply to the present case. Since the Data Protection Commission did not share the Data Protection Ombudsman’s view, judicial proceedings before the domestic administrative courts were initiated with a view to clarifying the legal issue. In the course of these proceedings, the Supreme Administrative Court referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling defining the scope of application of the exemption to the processing of personal data for journalistic activities, as laid down in Art. 9 of the Data Protection Directive (Directive 95/46/EC), on which the national exemptions were based. In the view of the CJEU, this exemption was to be interpreted strictly. As a consequence, the Supreme Administrative Court ruled in favour of the Data Protection Ombudsman’s view and barred the two companies from continuing to carry out the activities at issue, as the public interest did not require to publish the taxation data to the extent that had been the case in 2002, and to forward them to the SMS service.

The ECtHR found in its judgment that the Supreme Administrative Court had reconciled the competing interests in a convincing way and in line with ECtHR case-law. As the Court pointed out, in order to replace the domestic court’s view by its own, it would have required strong reasons, which the Court did not assume to exist in the present case. Finally, the Court emphasised that the judgment did not generally prohibit the publication of taxation data, but only to the extent at issue.

The fact that the data was not published anymore in Veropörssi in the years after 2009 and the SMS service was discontinued, could not be seen as a direct consequence of the domestic courts’ and authorities’ decisions, but as an economic decision by the applicants themselves. In the same manner, the Court also did not find a violation of the prohibition of discrimination, as laid down in Art. 14 ECHR. The applying companies had not been discriminated against vis-à-vis other newspapers publishing taxation data, as the latter only published these data to a lesser extent. Consequently, the situation of the applicants was not sufficiently similar to the situation of the other newspapers. The Court found the applicants’ argument regarding this issue to be manifestly ill-founded and therefore, rejected the claim as inadmissible.

The Court, however, established a violation of the right to a fair trial and, in particular, of the right to be heard within a reasonable time (Art. 6(1) ECHR). The total length of the administrative proceedings, which had lasted for more than eight years, was excessive, even taking into account the complexity of the case, and therefore did not meet the “reasonable time” requirement.

The judgment of the ECtHR of 21 July 2015, Appl. No. 931/13 – Satakunnan Markkinapörssi Oy und Satamedia gg. Finnland, is available at:
http://hudoc.echr.coe.int/eng?i=001-156272

The judgment of the CJEU of 16 December 2008, Case no. C-73/07 – Satakunnan Markkinapörssi Oy und Satamedia, is available here.

Sebastian Schweda, attorney at law and research associate at the Institute of European Media Law (EMR), Saarbrücken/Brussels.



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