The case of Sugar v BBC ([2010] EWCA Civ 715) concerned the construction of the statutory provisions in the Freedom of Information Act 2000 relating to the BBC as a public authority.  The application failed as a result of the view taken by the court of the meaning of  the phrase “held for purposes other than journalism”.   The decision is discussed on the extremely useful Panopticon Blog.  However, we would like to draw attention to another aspect of the case which is relevant to our recent posts on “freedom of information” as an aspect of the right to freedom of expression protected by Article 10 (see here, here and here). 

One of the points relied on was the emerging Article 10 case law on the “right to obtain information”.  The point was dealt with by Moses LJ in this way:

Tarsasag a Szasbadsagjogokert v Hungary (No 37374/05 14 April 2009) a landmark decision on freedom to information, on which Mr Eicke, for Mr Sugar, relied, establishes that article 10 may be invoked not only by those who seek to give information but also by those who seek to receive it (see also A v Independent News and Media Limited & Others [2010 EWCA Civ 343 {43] and [44]).

But in the context of a case where the information is said to be held for the purpose of maintaining and improving the quality of the BBC’s journalistic output (see quote at [12]), it does not seem to me to be possible to identify within Article 10 itself or within the jurisprudence relating to that Article any pointer for or against the rival contentions. It is plainly consistent with Article 10 to protect an uninhibited discussion and review as to how the dissemination of fact and opinion about Israel and Palestine may be improved. It is plainly consistent with Article 10, as it is now interpreted, that there should be freedom of access to such a review, providing that the prospect of disclosure does not risk inhibiting its preparation, the subsequent consideration by the BBC to which it led and, in the result the maintenance and improvement in the standards of journalism relating to that region. In those circumstances, invocation of the freedoms enshrined in Article 10 provide no assistance. [76 and 77]

The Tarasag case has not been subject to any recent analysis in the Strasbourg Court.  However, our attention has been drawn to the submissions of the Interveners, Open Society Justice Initiative, The Financial Times Ltd, and Access Info Europe in Strasbourg for that case.  These submissions refer to the international case law on the right to access to information and a useful additional resource in this area.