CASE OF SATAKUNNAN MARKKINAPORSSI OY AND SATAMEDIA OY v. FINLAND
Remainder inadmissible;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev
5. The applicant companies have their seat in Kokemäki. 6. The first applicant company Satakunnan Markkinapörssi Oy has been publishing Veropörssi magazine since 1994. The magazine publishes yearly information about natural persons’ taxable income and assets. This information is public according to Finnish law. Several other publications and media companies also publish such information. The editor-in-chief of the magazine lodged an application with the Court in 2010 (see Anttila v. Finland (dec.), no. 16248/10, 19 November 2013). 7. In 2002 the magazine appeared 17 times and each issue concentrated on a certain geographical area of the country. Data on 1.2 million persons’ taxable income and assets was published, which constituted at the time a third of all taxable persons in Finland. The magazine also published taxrelated articles and announcements. 8. The first applicant company Satakunnan Markkinapörssi Oy has worked in cooperation with the second applicant company, Satamedia Oy. The companies are owned by the same persons. In 2003 the second applicant company, together with a telephone operator, started an SMSservice. By sending a person’s name to a service number, taxation information concerning that person could be obtained if information was available in the database. The database was created using data already published in the magazine. Since 2006 the second applicant company has also been publishing Veropörssi magazine. 9. On an unspecified date the Data Protection Ombudsman (tietosuojavaltuutettu, dataombudsmannen) contacted the applicant companies and advised them to stop publishing taxation data in the manner and to the extent that had been the case in 2002. Collecting data which was not to be published was not forbidden. The companies declined because they felt that this request violated their freedom of expression. 10. By letter dated 10 April 2003 the Data Protection Ombudsman requested the Data Protection Board (tietosuojalautakunta, datasekretessnämnden) to order that the applicant companies be forbidden to process taxation data in the manner and to the extent that had been the case in 2002 and to pass such data to an SMS-service. He claimed that, under the Personal Data Act, the companies had no right to establish such personal data registers and that the derogation provided by the Act concerning journalism did not apply to the present case. The collecting of taxation information and the passing of such information to third parties was not journalism but processing of personal data which the applicant companies had had no right to do. 11. On 7 January 2004 the Data Protection Board dismissed the request of the Data Protection Ombudsman. It found that the derogation provided by the Personal Data Act concerning journalism applied to the present case. As concerned the SMS-service, the data used in the service had already been published in Veropörssi magazine and the Act did not therefore apply to it. 12. By letter dated 12 February 2004 the Data Protection Ombudsman appealed to the Helsinki Administrative Court (hallinto-oikeus, förvaltningsdomstolen), reiterating his request that the applicant companies be forbidden to process taxation information in the manner and to the extent that had been the case in 2002 and to pass such data to the SMS-service. 13. On 29 September 2005 the Administrative Court rejected the appeal. It found that the derogation provided by the Personal Data Act concerning journalism, which had its origins in Directive 95/46/EC, should not be interpreted too strictly as it would then favour protection of privacy over freedom of expression. The court considered that Veropörssi magazine had a journalistic purpose and that it was also in the public interest to publish such data. The court emphasised, in particular, that the published data was public. The derogation provided by the Personal Data Act concerning journalism thus applied to the present case. As concerned the SMS-service, the court agreed with the Data Protection Board that, as the information had already been published in the magazine, the Act did not apply to it. 14. By letter dated 26 October 2005 the Data Protection Ombudsman appealed further to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen), reiterating the grounds of appeal already presented before the Administrative Court. 15. On 8 February 2007 the Supreme Administrative Court decided to request a preliminary ruling from the Court of Justice of the European Union on the interpretation of Directive 95/46/EC. 16. On 16 December 2008 the Court of Justice of the European Union, sitting in a Grand Chamber composition, gave its judgment (see Case C3/07 Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy, judgment of 16 December 2008 (Grand Chamber)). It found first of all that the activities in question constituted “processing of personal data” to which the Directive applied. Moreover, activities involving the processing of personal data such as that relating to personal data files which contained solely, and in unaltered form, material that had already been published in the media, also fell within the scope of the Directive. In order to take account of the importance of the right to freedom of expression in every democratic society, it was necessary to interpret notions relating to that freedom, such as journalism, broadly. However, in order to achieve a balance between the two fundamental rights, the protection of the fundamental right to privacy required that the derogations and limitations in relation to the protection of data provided for in the Directive had to apply only in so far as was strictly necessary. In conclusion, activities such as those involved in the domestic proceedings, relating to data from documents which were in the public domain under national legislation, could be classified as “journalistic activities” if their object was to disclose to the public information, opinions or ideas, irrespective of the medium which was used to transmit them. They were not limited to media undertakings and could be undertaken for profitmaking purposes. 17. On 23 September 2009 the Supreme Administrative Court quashed the previous decisions and referred the case back to the Data Protection Board. It requested the Board to forbid the processing of taxation data in the manner and to the extent carried out in 2002. The court noted first that the term “journalism” was not defined in Directive 95/46/EC but that, according to the Court of Justice of the European Union, it was necessary to interpret notions relating to freedom of expression, such as journalism, broadly. However, when balanced against the right to privacy, any derogations to the latter were to be kept only to what was strictly necessary. When balancing the right to freedom of expression against the right to privacy, the Court had found that the decisive factor was to assess whether a publication contributed to a public debate or was solely intended to satisfy the curiosity of readers. The Supreme Administrative Court found that the publication of the whole database collected for journalistic purposes could not be regarded as journalistic activity. The public interest did not require such publication of personal data to the extent seen in the present case, in particular as the derogation in the Personal Data Act was to be interpreted strictly. The same applied also to the SMS-service. 18. The SMS-service was shut down after the decision of the Supreme Administrative Court was served on the applicant companies. The magazine continued publishing taxation data in autumn 2009 when its content was only one fifth of the previous content. Since then the magazine has not appeared. 19. On 26 November 2009 the Data Protection Board forbade the first applicant company to process taxation data in the manner and to the extent that had been the case in 2002 and to forward this information to an SMSservice. The second applicant company was forbidden to collect, save or forward to an SMS-service any information received from the first applicant company’s registers and published in Veropörssi magazine. 20. By letter dated 15 December 2009, after the Data Protection Board had made its decision, the Data Protection Ombudsman asked the applicant companies to indicate what measure they were envisaging to take in view of the Board’s decision. In their reply, the applicant companies asked the Data Protection Ombudsman’s view on the conditions under which they could continue publishing public taxation data at least to a certain extent. In his reply the Data Protection Ombudsman stated that, according to the Supreme Administrative Court’s decision, the applicant companies lacked the legal right to maintain their taxation database and to publish it, and reminded them of his duty to report any breach of the Personal Data Act to the police. 21. By letter dated 9 February 2010 the applicant companies appealed against the decision of the Data Protection Board to the Helsinki Administrative Court which transferred the case to the Turku Administrative Court. They complained that the decision violated the prohibition of censorship guaranteed by the Constitution as well as their freedom of expression. The Finnish Constitution provided better protection than the international human rights treaties as the latter did not prohibit censorship fully. According to the domestic law, it was not possible to prevent publication of information on the basis of the amount of information to be published or of the means used for its publication. Nor was it possible to use “public interest” as a criterion for preventing publication when preventive restriction of freedom of expression was concerned. Accepting that would mean that the authorities would be able to prevent publication, if they thought that the publication did not promote discussion of a topic of public interest. 22. On 28 October 2010 the Turku Administrative Court rejected the applicant companies’ appeal. It found that, as far as the matter had been decided by the Supreme Administrative Court in its decision of 23 September 2009, it could not take a stand on the issue. In the latter decision the Supreme Administrative Court had stated that the case was not about the public nature of the taxation documents, nor about the right to publish such information. As the court was now examining only the decision rendered by the Data Protection Board which was issued as a result of the Supreme Administrative Court’s decision of 23 September 2009, it could not examine the issues which the Supreme Administrative Court had excluded from the scope of its decision. As the Board’s decision corresponded to the content of the Supreme Administrative Court’s decision, there was no reason to change it. 23. By letter dated 29 November 2010 the applicant companies appealed further to the Supreme Administrative Court, reiterating the grounds of appeal already presented before the Administrative Court. They noted in particular that the decision issued by the Data Protection Board had prohibited the processing of taxation information for publishing purposes as well as requiring that the internal registers of the first applicant company be protected in a manner required by the Personal Data Act. In practice the companies were prevented from collecting information for publishing purposes, which meant that there was an interdiction to publish such information. The companies noted that the Finnish Constitution also prohibited indirect preventive censorship. 24. On 18 June 2012 the Supreme Administrative Court upheld the judgment of the Administrative Court. It found that the case was not about the right to publish taxation information as such, nor about preventive censorship. On these grounds and the grounds mentioned in the Administrative Court’s reasoning, the court found that there was no reason to change the latter’s decision.