The conventional view has been that, despite the express reference in Article 10 to the right “to receive … information” it does not give rise to any corresponding right of access to official information.  This view was expressed most clearly by the Court of Human Rights in the well-known case of Leander v. Sweden ((1987) 9 EHRR 433).  The the applicant complained of a violation of his Article 10 rights when refused confidential Government information relating to an unsuccessful job application. 

In dismissing the complaint under Article 10 the Court stated:

“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]

The application of the Leander principle to Court proceedings in England and Wales was considered in Re Guardian News and Media Limited ([2010] 2 WLR 325 at [34]).  In that case, as explained above, certain media organisations applied to the Supreme Court for Anonymity Orders to be discharged.  Lord Rodger explained:

In asserting their right to publish M’s name, the Press are not asking to be supplied with information which would otherwise not be available to them.  On the existing Strasbourg case law, a right to obtain that kind of information is not within the scope of Article 10(1): Leander v. Sweden ((1987) 9 EHRR 433, 456, para. 74).  Here, however, the cases are heard in public and, were it not for the use of his initial and the Anonymity Orders, M’s name would be available to the Press and they would be free to report it.  Indeed, the effect of the Orders is that, even if the Press are aware of M’s name from other sources (which may well be the case), they cannot use it when reporting the proceedings.  So, by making the Orders, the Courts have interfered with the Article 10 Convention rights of the Press to impart information which either is, or normally would be, available to them.

In R (Binyam Mohamed) v. Secretary of State for Foreign and Commonwealth Affairs ([2010] 3 WLR 554) the Court of Appeal considered whether it was appropriate to reinstate paragraphs previously redacted from a judgment.  Lord Neuberger MR stated that the “central point” was that the Court should administer justice in public, which meant that all parts of a Judgment should be publicly available, unless there was a very powerful reason to the contrary [175].  He continued “What goes on in the courts, like what goes on in Parliament or in local authority meetings or in public inquiries, is inherently of legitimate interest, indeed of real importance, to the public.”  He stated:

The Human Rights Act 1998 has enlarged the Court’s role for present purposes.  The Courts have always been in a branch of Government (in the wider sense of that expression), and, as such, they now have a duty to comply with the Convention.  As the Divisional Court said, Article 10 carries with it a right to know, which means that the Courts, like any public body, have a concomitant obligation to make information available.  Of course, the obligation is not unqualified or absolute, nor does it involve the Court arrogating to itself some sort of roving commission.  But, where the publication at issue concerns the contents of a judgment of the Court, it seems to me that Article 10 is plainly engaged:  the public’s right to know is a very important feature and that is not merely a point of principle.” [179]  (emphasis added).

This is a highly significant observation by the Master of the Rolls.  It opens up the prospect of a media right to receive information from Courts, and from other public authorities on matters of legitimate public interest.

In Independent News and Media Limited and Others v. A (By his Litigation Friend, the Official Solicitor) ([2010] 3 All ER 32) a differently constituted Court of Appeal (Lord Judge CJ, Lord Neuberger MR and Sir Mark Potter P) took this a stage further.  Holding that Article 10 was engaged at the time when the media organisations applied for permission to attend the Court of Protection hearing, the Court departed from the general rule laid down in Leander’s case. At [39] Lord Judge CJ giving the Judgment of the Court stated:-

…where the information concerned is sought by the media and arises in Court proceedings, the general rule laid down in Leander’s case at para. 74 may well not apply.  As is clear from that paragraph, the principle that Article 10 cannot give rise to a right to obtain information is not absolute, in the light of the words “in circumstances such as these” … Where Article 6 is also engaged, and the information sought consists of evidence given in a Court of law, Article 10 may be engaged at least when the media are seeking the information for the purpose of disseminating it more widely because it is in the public interest.” [39]

Lord Judge CJ then proceeded to discuss a number of Strasbourg authorities including in particular Atkinson, Crook and The Independent v. UK (1990) 67 DR 244, Matky v. Czech Republic App No. 19101/03 (10 July 2006) and Tarasag a Szabadsagjogokert v. Hungary [2009] ECHR 37374/05.  At he concluded:

Tarasag and Leander were decisions involving access to records kept by the executive arm of Government, whereas the present case concerns access to what goes on in court, which renders the case for saying Article 10 is engaged stronger, as the Commission acknowledged in Atkinson, even before Matky and Tarasag. Further, the complaint in this case is that of the media who want the information for public purposes as in Atkinson and Tarasag, rather than being a complaint of an individual as in Leander and Gaskin.  In addition, the basis of the media interest is what is lawfully and appropriately already in the public domain.  For those reasons, we consider that Article 10 was engaged on the making of the instant application by the media.” [44]

In adopting this approach the Court of Appeal expressly acknowledged that it was furthering a new development, flagged-up by Tarasag, in the relationship between freedom of information and the Convention:  [42].  This new development is both timely and welcome.  It is timely because of the growing practice of hearing cases in private, without an opportunity for media scrutiny.  It is welcome because it gives real content to the Article 10 right to receive information, at least in the case of Courts, and potentially in the case of other public authorities.

Antony White QC is a barrister at Matrix.  This is a further extract from a talk given at the 2010 “Protecting the Media” conference